The General Intelligence Laws Amendment Bill (Gilab) has been criticised by civil society and others over its expansive definitions of national security and threats to national security, persons of national security interest, and the level of intrusiveness permitted to state security functionaries.

This concern again emerged in Tuesday’s declaration in the House when both the IFP and ACDP highlighted how, despite some limitations having been effected, the definitions remained overly broad.

Although the independence of the Inspector-General of Intelligence (IGI) – the constitutional oversight entity – was strengthened to be able to appoint the office’s staff and manage its budget, measures fell short. 

The IGI’s certificates – effectively the recommendations to fix maladministration and malfeasance in intelligence services – have remained recommendations: the intelligence services are not compelled to implement these. That’s what the State Security Agency (SSA) had argued for.

“This means the IGI lacks the necessary teeth,” said EFF MP Mbuyiseni Ndlozi, adding that the IGI should be elevated to become one of the institutions established in Chapter 9 of the Constitution to support democracy.

In a rare show of unity, the DA joined the ANC in praising Gilab.

“South Africa stands to benefit a great deal as it highlights striking a balance between security and the rights of individuals,” said ANC MP Bheki Hadebe.

He echoed the comments of the Gilab ad hoc committee chairperson, ANC MP Jerome Maake, that this law would “foster trust between citizens and government” and “balance security imperatives and individual freedoms”.

DA MP Dianne Kohler Barnard said Gilab was “what is needed to reverse the evils of those truly awful years”, referring to ex-president Jacob Zuma’s administration.

“What we achieved is to fix that,” she said, adding that despite the time pressure, “we have taken out every single threatening phrase and replaced it.”

During the public hearings and ad hoc committee discussions, the SSA acknowledged to MPs that it had “conflated” domestic surveillance with bulk interceptions, or monitoring all internet traffic in its legislative drafting.

This comes against the Constitutional Court landmark amaBhungane ruling that the 2002 Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica) was unconstitutional and invalid on bulk interceptions and was also unconstitutional on domestic interceptions because those surveilled were not ever notified. 

The final Gilab now talks of a new bulk interception centre, and how a retired judge appointed by the President must approve applications. 

If it becomes necessary “to engage in surveillance of a citizen of the Republic of South Africa, whether within or outside of the Republic”, this bulk interception centre must notify the person within 15 days.

However, if the purpose of the surveillance were to be compromised, such notification could be postponed to 90 days – and if national security was involved, that notification may be postponed for a period at the discretion of a judge or magistrate.

Curiously, Gilab continues to reference the 2002 Rica despite the key sections now being unconstitutional. 

This comes despite Parliament having passed a justice department-sponsored Rica Amendment Bill that also deals with the issues raised by the Constitutional Court. 

Passed in December 2023, this Rica Amendment Bill has been sitting in the President’s in-tray for over three months.

This lack of legislative coordination raises concerns over effective governance and implementation of the law. This is aggravated, as the SSA is drafting separate legislation on domestic surveillance, although it’s unclear when that would come to Parliament.

A further concern for accountability and transparency would be that much of the detail of Gilab and its implementation will be outlined in regulations. It’s a preferred way for ministers to regulate their domain as regulations are their executive prerogative; few ministerial regulations come to Parliament for consideration.

At its most basic, the Gilab separation of the SSA into domestic and foreign services is not controversial. This was a central recommendation in the 2018 High-Level Review Panel Report on the SSA to help clean up maladministration and politicisation. 

The recommendation was reiterated in the Sandy Africa panel on the July 2021 unrest, in recommendations from the Zondo Commission.

Once that separation is done, the job of the new domestic service includes protecting its own against “threats to personal security, unauthorised disclosure of information, identity and other acts of hostility aimed at harming members”. 

It’s also about gathering, correlating, evaluating and analysing information to “identify and impede any threat to the security of the Republic and its people”, and to keep the President informed of threats.

Sometimes, Gilab played with language. So, security vetting is out, but security competency assessment is in. It’s compulsory for anyone working for any organ of state or providing a service to determine “if such person or institution is suitable to access classified information or critical infrastructure (the old national key points) of the state or is viewed as vulnerable to blackmail, undue influence or manipulation or security compromise”.

It’s a broad scope and could include as a barrier to state employment, for example, a default judgment for having skipped a clothing account or bond payment over a dispute – if the SSA so chooses. 

There’s no word on timeframes for the SSA to complete such a security competency assessment. Vetting backlogs have remained untackled for years.

Shielding intelligence-related matters from public scrutiny and public input seemed to run like a golden thread through the ad hoc committee. Most of its members are also part of the Joint Standing Committee on Intelligence (JSCI), the only committee established in law and one that, as a rule, sits behind closed doors.

And so, Maake, the JSCI chair who chaired the Gilab ad hoc committee, made a point of telling the SSA, the National Intelligence Coordinating Committee, SAPS crime intelligence and others that the committee was unfolding in public.

Read more in Daily Maverick: Lawmaking behind closed doors a possibility as new intelligence Bill processed

Some of those from the world of smoke and mirrors, appearing before MPs, seemed to express their surprise and promised to watch their words before proceeding.

The General Intelligence Laws Amendment Bill adopted on Tuesday – with objections from the Freedom Front Plus and ACDP – now goes to the National Council of Provinces for concurrence. DM