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27 FEBRUARY 2024
AH Gaum (Advocate of the High Court) & M du Plessis (Attorney of the High Court)
1. INTRODUCTION
The Inclusive Society Institute appreciates the opportunity to provide input on the General Intelligence Laws Amendment Bill [B40 – 2023]. We recognise the necessity of safeguarding national security to ensure the well-being of the Republic and its residents. However, we express significant concern regarding –
a) Overreach in Definitions of Threat to National Security
The Bill's broadening of terms related to intelligence activities risks overly intrusive government presence in private lives, extending well beyond legitimate national security concerns. Such expansions could unjustifiably encroach upon daily activities, stifling free expression and association.
b) Overly Broad Vetting Powers
The Bill authorises intelligence agencies to conduct compulsory security vetting for any "person or institution of national security interest." This broadly defined power could potentially encompass private individuals, non-profit entities, religious organisations, and commercial enterprises, subjecting them to invasive scrutiny. The potential for misuse of such extensive vetting authority raises alarms about privacy violations and abuse.
c) Enhanced Surveillance without Adequate Oversight
The proposal to bolster surveillance capabilities through the National Communications Centre, without instituting robust oversight mechanisms and essential privacy protections, is troubling. The absence of safeguards aligns poorly with constitutional rights to privacy and freedom of expression, setting a precarious precedent for mass surveillance practices.
d) Insufficient Measures Against Fund Misuse
The Bill does little to introduce checks against the misuse of secret funds, a notable issue during periods of state capture. Without clear accountability frameworks, there is a risk of continuing improper financial practices within the intelligence sector.
2. OVERREACH IN DEFINITIONS OF THREAT TO NATIONAL SECURITY
2.1. Defining activities that undermine section 9 of the Constitution as threats against national security
2.1.1. The Bill extends the definition of national security threats to encompass “any activity that seeks to harm the advancement and promotion of equality and equitable access to opportunities by all South Africans as provided for in section 9 of the Constitution”.
2.1.2. This broad and subjective interpretation could encompass various actions, from social media expressions to protests, risking an overreach into areas safeguarded by human rights and legal processes.
2.1.3. The Bill's approach, inspired by constitutional aspirations towards equality and peace (section 198 of the Constitution), overextends these principles into direct national security concerns. Traditionally, national security threats are identified as actions posing immediate risks to a nation's sovereignty and safety, such as terrorism or espionage, rather than issues of inequality or discrimination, which are typically addressed through dedicated legal and human rights frameworks[1], such as the Constitution read with the Promotion of Equality and Elimination of Unfair Discrimination Act (Equality Act) in South Africa’s case.
2.1.4. Implementing such a broad definition could conflate human rights issues with security threats, leading to potential misuse of security powers and infringing on freedoms like expression and peaceful assembly. Moreover, existing legal mechanisms, including the Equality Act, Equality Courts, South African Human Rights Commission, Employment Equity Act, CCMA and others, are already designed to handle discrimination and equality issues effectively, questioning the need for security agencies' involvement in these areas. It appears to be irrational that security agencies are now afforded the authority to make judgement calls involving equality and equity of access whilst they are neither experts in this field, nor the authorities mandated by the Constitution and the law to adjudicate and investigate these matters.
2.2. Comment on the remaining defined threats to national security
2.2.1. Peace and Harmony (b)
The inclusion of activities that harm the advancement and promotion of peace and harmony and freedom from fear and want is inherently vague and could potentially encompass legitimate protest or dissent. While aiming to protect societal harmony, this definition could be misused to suppress rights to freedom of expression, assembly and protest.
2.2.2. Foreign Hostile Acts (d)
Defining threats to national security as foreign hostile acts aimed at undermining the constitutional order is reasonable and mirrors the security concerns of many nations. However, the challenge lies in maintaining a balance between genuine security measures and respecting international law and human rights.
2.2.3. Terrorism and Related Activities (e)
The mention of terrorism, terror financing, illicit money flows, money laundering, and corruption aligns with global security norms. These are clear threats to national and international security, and their inclusion is justified.
2.2.4. Subversion and Undue Influence (f)
The language around subversion and undue influence by hostile interests is broad, raising concerns about potential overreach. It is crucial that such definitions are applied in a manner that does not infringe on lawful international relations or suppress legitimate criticism of government policies.
2.2.5. Espionage (g)
Espionage and the protection of economic, scientific, or technological secrets are standard concerns in national security laws. This definition is specific and directly relates to safeguarding national interests.
2.2.6. Violence, Intimidation, and Sabotage (h)
Serious acts of violence and sabotage against the Republic's security and infrastructure are clear threats. However, the inclusion of "acts directed at overthrowing the constitutional order" should ensure it does not criminalise legitimate political opposition or peaceful protests.
2.2.7. Response to Force (i)
This section's focus on protecting the Republic's ability to respond to force or threats is crucial for national defence. The exclusion of lawful political activity, advocacy, protest, or dissent is important for safeguarding democratic freedoms.
2.2.8. Natural or Artificial Calamities (j)
Including threats of calamity, like pandemics, in national security considerations is a contemporary necessity, especially in light of global health crises. However, it is essential to ensure that emergency powers are not used to indefinitely extend government control or restrict freedoms beyond what is necessary for public safety.
2.2.9. Financial Crimes (k)
The inclusion of theft, siphoning of state resources, and related corrupt activities addresses the internal threats to national security, echoing concerns raised by the Zondo Commission on state capture. This is a vital inclusion, given the direct impact of corruption on governance and public trust.
2.3. Recommendations
2.3.1. It is suggested that the definition of national security threats in the Bill be narrowed to focus on direct and immediate risks, explicitly excluding lawful political and social activities that are part of democratic engagement. Measures taken under the guise of national security should adhere to principles of necessity and proportionality, ensuring they do not unduly infringe upon human rights and freedoms.
2.3.2. The case of Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others (CCT278/19 & CCT279/19, 2021) deals with the constitutionality of legislation impacting rights under Section 36 of the South African Constitution, focusing on less restrictive means to achieve the purpose of a limitation. The Constitutional Court found that the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) was unconstitutional in parts because it failed to provide adequate safeguards for privacy, lacked independence in the appointment of judges for surveillance oversight, and did not ensure notification of subjects post-surveillance. The court emphasised the need for legislation to balance the purpose of surveillance with minimally intrusive methods, underlining the principle of less restrictive means to achieve the legislative aim, thereby protecting constitutional rights.
2.3.3. We are of the view that the principles set out in the Amabhungane case are instructive in respect of the definitions of threats to national security (and other areas of the Bill).
2.3.4. Based on the aforementioned concerns and principles, we recommend the definition of “threat to national security” should rather read as follows:
“For the purposes of this Act, a "threat to national security" is defined as any action, behaviour, or circumstance that, based on credible intelligence and evidence, is likely to cause significant and direct harm to the safety, sovereignty, or integrity of the Republic or its residents. This includes:
a) direct and immediate threats or actions that compromise the territorial integrity, sovereignty, or democratic constitutional order of the Republic.
b) terrorism and Related Activities: Acts of terrorism, including planning, financing, and execution of terrorist acts; illicit financial flows and money laundering related to terrorist activities; and acts of corruption that directly compromise national security.
c) unauthorised access, disclosure, or exposure of classified state security matters, economic, scientific, or technological secrets vital to national security, conducted by foreign entities or agents that undermine the Republic's sovereignty.
d) serious acts of violence, intimidation, or sabotage that pose a clear and present danger to the security of the Republic, its critical infrastructure, or its constitutional order.
e) actions by foreign states or entities directed at undermining the Republic's constitutional order or sovereignty through subversive or covert means.
f) natural disasters and pandemics, where such events significantly impair the Republic's capacity to maintain national security and public order, as officially declared by competent authorities.
g) acts of theft, siphoning, misuse or corrupt misappropriation of state financial resources, when such acts have a demonstrable and direct impact on the operational integrity and security of the state.
Notwithstanding the above, lawful political activity, advocacy, protest, and dissent do not constitute a threat to national security.”
3. OVERLY BROAD VETTING POWERS
3.1. Who or what is of potential interest to national security?
3.1.1. The Bill authorises intelligence agencies to conduct compulsory security vetting for any "person or institution of national security interest." Furthermore, the Bill provides the following definition:
“ ‘person or institution of national security interest’ means any person or institution, identified by the Agency in the form and manner prescribed, that conducts himself/herself or itself or engages in activities that are inconsistent with the principles set out in section 198 of the Constitution including any person or institution that engages in activities that are defined as a threat to national security in terms of this Act.”
3.1.2. It has been raised in submissions from other interested parties that this broadly defined power could potentially encompass private individuals, non-profit entities, religious organisations, and commercial enterprises, subjecting them to invasive scrutiny. However, we appreciate that the identity of the person or entity being subject to scrutiny is not in itself unconstitutional. Religious organisations, non-profit entities, commercial enterprises and private individuals can, in the right circumstances, legitimately be subjects of national security interest, and may even commit acts that are a threat to national security.
3.1.3. The issue for us is not how broadly the net is thrown in respect of who or what a person or institution of national interest may be, but rather how broadly and vaguely the Bill describes the conduct that would potentially render them a national security interest in the first place.
The principles set out in section 198 of the Constitution
3.1.4. The Bill would make it such that any person or organisation who “engages in activities that are inconsistent with the principles set out in section 198 of the Constitution” would become a national security interest. We are of the view that this is far too broad and vague to pass constitutional muster. Section 198 of the Constitution states the following:
“198. The following principles govern national security in the Republic:
(a) National security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life.
(b) The resolve to live in peace and harmony precludes any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in terms of the Constitution or national legislation.
(c) National security must be pursued in compliance with the law, including international law.
(d) National security is subject to the authority of Parliament and the national executive.”
3.1.5. Using the principles of section 198 as criteria for vetting individuals or institutions introduces a level of subjectivity and ambiguity that is incompatible with the rule of law. The rule of law requires laws to be clear, predictable, and understandable to allow individuals to regulate their conduct accordingly. As put by the Constitutional Court, “[t]he law must indicate with reasonable certainty to those who are bound by it what is required of them so that they may regulate their conduct accordingly.”[2] When laws or policies are vague, they fail to provide this guidance, leading to arbitrary application and potential abuse of power.
3.1.6. Constitutional principles, while crucial for guiding the ethos and actions of a nation, are inherently broad and open to interpretation. They are designed to set the tone for law-making and governance, not to serve as direct criteria for legal judgments or security assessments. Applying these principles as objective measures for national security interests conflates their guiding purpose with specific legal standards, which should be clearly defined and narrowly tailored to prevent misuse.
3.1.7. The rule and specificity of law are especially critical in the context of national security, where the stakes are high, and the implications of being deemed a national security interest are significant. Broad and vague laws risk encompassing a wide array of innocent activities, chilling legitimate expression and association, and potentially infringing on fundamental rights.
Any person or institution that engages in activities that are defined as a threat to national security in terms of this Act.
3.1.8. The Bill’s definition of who or what is considered of interest to national security creates further vagueness and broadness by “including any person or institution that engages in activities that are defined as a threat to national security in terms of this Act.”
3.1.9. As stated previously, we are of the view that the Bill’s definition of activities that are defined as a threat to national security are too vague and too numerous, and one of the negative consequences of this is that people and institutions are at risk of too easily being “of national security interest” and subjected to vetting and other consequences under the Bill.
3.1.10. If the Bill were, however, to rework its definitions of threats to national security so as to be reasonable and not overly broad (as previously suggested in this submission), it would go a long way to addressing our concerns under this section.
3.2. Recommendation
3.2.1. In light of the above, we recommend that the definition of “person or institution of national security interest” should be limited by excluding reference to section 198 of the Constitution and focusing only on those individuals and institutions that engages in activities that are defined as a threat to national security (as per our prior recommendations on the definition of threats to national security).
4. ENHANCED SURVEILLANCE WITHOUT ADEQUATE OVERSIGHT
4.1. Context and Concerns
4.1.1. The Bill proposes significant enhancements to the surveillance capabilities of the National Communications Centre (NCC), ostensibly to bolster national security. However, the Bill does so without introducing commensurate oversight mechanisms or privacy safeguards, raising profound concerns about the impact on constitutional rights, particularly the rights to privacy and freedom of expression.
4.2. Constitutional Implications
4.2.1. The Constitution of South Africa enshrines the rights to privacy (Section 14) and freedom of expression (Section 16), foundational pillars of a democratic society. Enhanced surveillance capabilities, especially when unchecked, threaten these rights. The potential for mass surveillance not only invades personal privacy but also chills free speech, as individuals may self-censor for fear of surveillance. We are called upon here to recall the judgment in the Amabhungane case once more, which warned against this very same form of overreach in surveillance in respect of RICA.
4.3. Lack of Oversight and Safeguards in Interception Applications
4.3.1. The Bill's failure to specify robust, independent oversight mechanisms for the NCC's expanded surveillance capabilities is a critical oversight.
4.3.2. We note that section 2B(1), which the Bill proposes, states the following in respect of the NCC:
‘‘2B(1) The Centre shall, in a prescribed manner, and with regard to foreign signals, communications and non-communications—
(a) gather, correlate, evaluate and analyse relevant intelligence in order to identify any threat or potential threat to national security subject to—
(i) submission of bulk interception application in the form and manner, as prescribed for approval by a retired Judge appointed by the President, after consultation with the Chief Justice;
(ii) two advisory interception experts appointed by the Minister based on his or her relevant qualifications and experience in the field; and
(iii) the Centre supplying relevant intelligence to the national intelligence structures.
4.3.3. We recognise that the Bill at least makes more of an attempt than RICA, in its pre-Amabhungane interpretation, to ensure the impartiality of the judge tasked with considering the interception application (by adding the requirement that the Chief Justice be consulted in the appointment of the judge). However, the issue remains that the interception application is ex parte, without the possibility of review or appeal. We understand that the subject of intended surveillance, both in respect of RICA and in respect of national security considerations under the Bill, cannot be a party to their own interception application – this would defeat the purpose of the surveillance. However, the Bill’s failure to put in place measures to address the risks of the ex parte nature of the interception application is concerning.
4.3.4. In Amabhungane, the Constitutional Court held that “[i]n sum, RICA is unconstitutional to the extent that it lacks sufficient safeguards to address the fact that interception directions are sought and obtained ex parte”[3]. We are of the view that the Bill will face the same challenge should it be passed without having its own safeguards in this respect. While we recognise that information sought in terms of RICA may differ from the information that may be sought in terms of the Bill, the rights affected by both these pieces of legislation do not, and they require similar protections.
4.3.5. We therefore suggest that the Bill incorporate a public advocate to argue on behalf of the subject of the interception application, or a similar measure.
4.4. General Surveillance Concerns
4.4.1. The expansion of surveillance powers without explicit, strong privacy protections risks enabling indiscriminate data collection and monitoring activities. Clear guidelines on data collection, retention, use and sharing are necessary to protect individuals' privacy rights.
4.4.2. Instituting enhanced surveillance capabilities without adequate safeguards sets a dangerous precedent, potentially normalising mass surveillance practices. This could lead to a slippery slope, where the threshold for initiating surveillance is progressively lowered, further encroaching on individual freedoms.
4.4.3. Drawing on international human rights standards and best practices can provide valuable guidance. The United Nations' privacy principles[4] and the European Union's General Data Protection Regulation[5] offer frameworks emphasising the necessity, proportionality, and transparency of surveillance measures, alongside strong oversight and redress mechanisms for individuals.
4.5. Recommendations for Reform
4.5.1. Improve Judicial Oversight
Make provision for a public advocate or a similar functionary to address the “ex parte” issue in interception applications.
4.5.2. Implement Privacy Safeguards
Clearly define privacy safeguards, including limitations on data collection, retention periods, use restrictions, and protocols for data sharing, both domestically and internationally.
4.5.3. Enhance Transparency
Require regular reporting on the use of surveillance powers, including the number of surveillance authorisations, the types of data collected, and the effectiveness of surveillance activities in achieving their stated objectives.
4.6. Conclusion
While national security is undeniably important, it must not be pursued at the expense of constitutional rights. The Bill's current approach to enhancing surveillance capabilities lacks the necessary balance between security concerns and the protection of privacy and freedom of expression. Implementing robust oversight mechanisms and privacy protections is essential to maintaining this balance and safeguarding democratic freedoms.
5. INSUFFICIENT MEASURES AGAINST FUND MISUSE
5.1. General concern
5.1.1. The concern over inadequate mechanisms to prevent the misuse of secret funds within the intelligence sector is significant, especially in light of historical instances of state capture and financial mismanagement. The Zondo Commission made significant findings in respect
5.1.2. Effective governance and oversight are crucial to ensuring that intelligence funding is used responsibly and for its intended purposes. What follows below are essential considerations and recommendations to address these concerns.
5.2. Transparency and Reporting
While the sensitive nature of intelligence work necessitates some level of confidentiality, it is possible to implement structured reporting mechanisms that allow for accountability without compromising national security. This could include classified reports to specific parliamentary oversight committees or the use of independent auditors with the necessary clearance.
5.3. Clear Legal Frameworks
The legislation should establish clear guidelines on the use of secret funds, including permissible and non-permissible expenditures. These frameworks should detail the processes for approval, disbursement, and accounting of funds to prevent misuse.
5.4. Independent Oversight
Independent bodies, such as an auditor-general for intelligence services or a dedicated oversight committee within parliament, can provide an additional layer of scrutiny. These bodies would require security clearance to access sensitive financial information but operate independently to audit and review intelligence funding and expenditures.
5.5. Whistleblower Protections
Protecting whistleblowers who report misuse of funds or other malpractices within the intelligence sector is essential for uncovering and addressing corruption. The legislation should include strong protections for individuals who report wrongdoing, ensuring they are not subject to retaliation.
5.6. Periodic Reviews and Audits
Regular and ad hoc audits conducted by independent external auditors can help identify irregularities or mismanagement of funds. These audits should be comprehensive, covering all aspects of financial management within the intelligence sector.
5.7. International Best Practices
Drawing on international best practices and standards for financial management and oversight in the intelligence sector can provide models for implementing robust mechanisms against fund misuse. Collaboration with international intelligence oversight bodies can also offer insights and methodologies for effective fund management.
5.8. Sanctions and Legal Recourse
Clear consequences for the misuse of funds, including legal sanctions for individuals found guilty of mismanagement or corruption, are crucial. The legislation should outline these sanctions and ensure that they are enforced to deter malpractice.
5.9. By addressing the risk of fund misuse through comprehensive legal and regulatory measures, oversight mechanisms, and a commitment to transparency and accountability, the intelligence sector can build trust and operate more effectively in its critical role of national security.
6. CONCLUSION
6.1. The General Intelligence Laws Amendment Bill, while aimed at strengthening national security, presents significant challenges and concerns in its current form. The broad definitions of threats to national security, expansive vetting powers, enhanced surveillance capabilities without adequate oversight, and insufficient measures against fund misuse, all raise serious constitutional and human rights concerns. These issues, if not addressed, risk undermining the democratic values and freedoms enshrined in the Constitution of South Africa.
6.2. The Inclusive Society Institute urges a comprehensive re-evaluation of the Bill to ensure that its provisions align with constitutional principles and international best practices. This includes narrowing the definitions of national security threats to focus on direct and immediate risks, ensuring robust oversight mechanisms for surveillance activities, implementing clear and stringent safeguards against the misuse of secret funds, and strengthening the independence and autonomy of oversight bodies.
6.3. It is imperative that the pursuit of national security does not come at the expense of the fundamental rights and freedoms of South Africans. National security legislation must strike a careful balance between safeguarding the Republic and its residents from genuine threats and preserving the human rights that form the cornerstone of our democratic society. We recommend that Parliament consider these concerns and recommendations carefully, with a view to amending the Bill to uphold the rights to privacy, freedom of expression, and the rule of law.
6.4. The Inclusive Society Institute stands ready to engage further on these matters, contributing to the development of legislation that effectively protects national security while respecting the constitutional rights and freedoms that define our democratic Republic.
FOOTNOTES
[1] For example, the U.S. has defined national security threats in terms of physical and cyber threats to the nation's sovereignty and safety, such as terrorism, espionage, and state-sponsored cyber-attacks. Issues of discrimination and inequality, while recognised as societal challenges, are generally addressed through civil rights legislation and judicial processes rather than as components of national security strategy.
The UK's national security strategy focuses on terrorism, organised crime, military threats, and cyber security. While the UK recognises the importance of social cohesion and the risks posed by radicalisation, efforts to combat discrimination and promote equality are primarily managed through social policy and legal frameworks outside the national security context.
Australia's national security policies concentrate on defence, counterterrorism, border protection, and cyber security. While there is an acknowledgment of the importance of social harmony and preventing radicalisation, issues of inequality and discrimination are largely addressed through domestic policies, human rights frameworks, and anti-discrimination laws.
[2] Affordable Medicines Trust and Others v Minister of Health and Another [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) at para 108.
[3] (CCT278/19 & CCT279/19, 2021) at para 100.
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