General Intelligence Laws Amendment Bill: Oral Submissions

Meeting report

The Chairperson welcomed the members and guests to the meeting and asked Members to introduce themselves for the record.

General Intelligence Laws Amendment Bill [B40-2023]: Oral Submissions

Submission by FW de Klerk Foundation
Ms Daniela Ellerbeck, Constitutional Programme Manager, FW de Klerk Foundation, presented the oral submission on the General Intelligence Laws Amendment Bill (GILAB). The Foundation was concerned that the Bill would amend the National Strategic Intelligence Act, 1994; the Intelligence Services Act, 2002; and the Intelligence Services Oversight Act, 1994 in a way that would depart from the Constitution’s framework, values, and intentions by infringing upon various constitutional rights such as privacy and access to justice.

The Bill empowers the South African Intelligence Agency to conduct security competence tests on inter alia civil society, activists, religious organisations, journalists and even private businesses and their employees. These tests are for the purpose of issuing a security clearance certificate. The implied risk is that should one fail to obtain a security clearance certificate, one would no longer be able to continue operation and possibly face criminal prosecution as a terrorist.

The Foundation said the Bill would result in the state being able to spy on anyone it deemed to be a threat to national security without telling those people that they are being spied on, such as civil society, activists, religious organisations, journalists and even private businesses. It would open the Bill to abuse by future governments wishing to threaten or even silence critical voices who oppose it.

[Please see the presentation document for full details]

Discussion
Ms D Kohler Barnard (DA) said the Bill’s requirement that heads of churches and non-governmental organisations (NGOs) be vetted was previously ruled unconstitutional by Parliament. The provision was removed from the Bill, but it seemed that it was put back in a different form, which could be interpreted in exactly the same way as what was taken out. She did not think the Bill as it stands would be accepted and felt that it would be challenged in the Constitutional Court. She asked for Ms Ellerbeck’s opinion on the matter.

Response by FW de Klerk Foundation
Ms Ellerbeck agreed that the first version of the Bill given to Parliament included expressly that NGOs and religious institutions had to be vetted, and there was a big outcry from the NGO and religious sector about that. That clause was taken out of the Bill, but what was now included in the Bill was the definition of a “person or an institution of national security interest” as a replacement for the clause that mandated the vetting of religious institutions and NGOs.

The definition of “person or an institution of national security interest” hinges on section 198 of the Constitution, but it included vague concepts as it failed to exclude lawful political acts, advocacy, protests, or dissent. The Foundation believed it should be included because it went wider than just NGOs and religious institutions, as it also affected the media, journalists, educational institutions, political parties, etc. The Foundation suggested that the definition should be amended to “any person or institution suspected of espionage” which is what the Bill should be focused on.

GILAB defined ‘espionage’ as “the unlawful and intentional communication, delivery or making available classified information to directly or indirectly benefit a foreign state, person or institution.” That is what should be the person or institution of national security interest. She agreed that the Bill would fail to pass constitutional master because it failed to comply with the rule of law and failed to comply with the section 36 justification analysis which limited the right to privacy, the right to access to justice, freedom of expression, freedom of occupational trade, etc.

The Chairperson asked whether the Foundation’s proposed definitions or actions were different from what was in the Bill because, on their recommendations, clause 1(t)(f) [“threat to national security”] was the same as the one in the Bill.

Ms Ellerbeck said there were some differences, as “threat to national security” included that a threat to national security must not include lawful political activity, advocacy, protest or dissent.

The Chairperson said there might have been some confusion because, in the Bill that was submitted to Parliament, the clause was exactly as the Foundation wrote it as its proposed amendment, so they were on the same page in that regard. The [draft] Bill that Ms Ellerbeck referred to was never submitted to Parliament.

Mr G Hendricks (Al-Jama-ah) asked if the Foundation would be happy with self-regulation because the groups that would be affected by the Bill mostly self-regulated against harming national security. He said it was unfortunate that religious institutions would be vetted because God appointed them and the security agency could not act as God. Vetting should not address the fears of the security agency regarding leaders of religious institutions, and should rather focus on the self-regulation of the other institutions.

The Chairperson said Mr Hendricks was deliberating, which was a process that the Committee would follow after the oral submissions.

Mr Hendricks apologised and reiterated his question about the position of the Foundation on self-regulation rather than vetting.

Ms Ellerbeck said when she looked at the Bill when it was opened up for comment on the website, it did not exclude lawful political activities, advocacy, protest and dissent. It was the Foundation’s submission that it should. Regarding self-regulation of religious institutions, she said Freedom of Religion South Africa would probably deal with the matter. What she presented was that the definitions should be tightened up because the Bill would catch everyone in its net. The spies should not be spying on everyone and not tell them that they are being spied on. They should be spying on people that are suspected of espionage. The Bill should be focused only on people who pose a threat to national security. It must define what a threat to national security is and ensure that the definition does not include civil society organisations acting within the laws of national security and not breaking the law in their actions. She agreed that religious institutions should not be vetted

The Chairperson said the religious leaders were not included in the Bill that was received in Parliament. He thanked Ms Ellerbeck and assured her that all the input would be considered in the deliberations on the Bill, which allowed her to exit the meeting. The Committee took a five-minute break.

Submission by Association of Christian Media
Mr Philip Rosenfeld [surname unclear] from the Association of Christian Media (ACM) presented the submission from his organisation on the GILAB. The organisation's main concern was the vetting of religious organisations and NGOs. During apartheid, there was unacceptable surveillance with spies infiltrating religious organisations. The security police had files on peaceful religious leaders, which were later used to intimidate them. This should not happen again. ACM was not asking for an exemption from investigation, but the idea of pre-emptive vetting was dangerous.

The Association was also concerned that the Bill would empower state intelligence services and government departments to engage in mass surveillance and demand information from religious institutions. They felt such powers should be limited and balanced by controls strengthening the powers and independence of the Office of the Inspector General. This was the way to ensure the Bill would not be used to curtail religious or political freedom.

The May 2023 Draft of the GILAB contained multiple provisions that were incompatible with religious freedom and the context of an open society. The definitions of ‘threat to national security’ and ‘persons of national security interest’ must be narrowed through the deletion of the vague criteria of ‘equality’, ‘peace and harmony’ and [removal of provisions] allowing mass surveillance and investigation on behalf of other government departments.

Discussion
The Chairperson said that, according to the definition of ‘threat to national security’, for a person to be investigated by an intelligence agency, it would mean that the person is a suspect. This would not necessarily mean they are guilty, but it would mean that any citizen could be investigated. He asked Mr Rosenfeld what he would suggest to tighten the definition of ‘threat to national security’.

Mr D Stubbe (DA) asked what the stance of the Association was on the investigation of the Private Security Industry Regulation Authority (PSiRA).

Mr B Hadebe (ANC) said when Mr Rosenfeld suggested the removal of the phrase “any opportunity”, he felt that he was referring to section 198 of the Constitution and asked whether the opportunity to advance section 198 did not comfort him. He said Mr Rosenfeld also suggested the complete removal of section A and B in the definition of threat to ‘national security’ and asked whether he did not view those sections as threats to national security.

The Chairperson said he understood “any opportunity” to mean that the intelligence services, especially foreign, would look around for opportunities, whether economic or otherwise and then provide advice. He asked Mr Rosenfeld to explain his understanding of opportunity.

Mr Hendricks said the Association represented about 70 Christian organisations and their views should not be taken lightly. They referred to the intrusiveness of the legislation as well as the threat to their freedom as the spies would be intrusive in their lives. He asked whether national security should take precedence over the right to freedom and privacy.

The Chairperson clarified that during the process of public comment, it was not about who was right or wrong. They were all working together with the public to enhance the Bill and to rectify the mistakes made in the Bill. He said sometimes there was a thin line between vetting individuals in terms of national security and lifestyle audits. He asked what the Association would suggest the vetting process should include, because it may be too broad.

Mr T Loate (COPE) asked for clarification regarding an education department spying on an educational institution and what it meant in relation to national security.

Mr Hadebe spoke again about the suggestions for the removal of sections A and B regarding the threat to national security. There was a false alarm from the United States about a bomb threat to Sandton. He asked Mr Rosenfeld if he would regard that as falling under section B.

Response by Association of Christian Media
Mr Rosenfeld accepted that a person would be a suspect and not found guilty, but the Bill gave powers to apprehend a person, and the Bill did not have the checks and balances concerning the arrest. That was a concern. He said there was a big difference between vetting - which was done beforehand - and the investigation after someone has done something. In a situation like the Bushiri case - where this man came to the country and said he was a prophet and exploited people for their money - he still felt that with the removal of sections A and B, the Bill would still have given the state powers to investigate on the matter.

The Association did not want what was proposed in 2016, where someone from the Cultural, Religious and Linguistics Rights (CRL) Commission proposed vetting every religious leader before they were allowed to practice. They were not disputing that if someone is suspected of doing something [illegal], they could be investigated, but the vetting process should be much narrower. Without sections A and B, there were plenty of criteria to investigate a religious leader if they were [suspected of] doing wrong things.

Regarding the PSiRA matter, he said the May draft of the Bill gave powers to co-opt private security. This would be very dangerous. Then the new draft said the private security regulator would be indirectly co-opted. The intention behind that must be clarified because the industry was bigger than the combined military forces. If it were to happen, as it was happening in China, that the state received access to every security camera tracking the movements [of people] and licence plates, that would be dangerous because it could be abused.

He said the Parliamentary Committee on the Hate Speech Bill worked from November 2022 until about April 2023 to try and iron out problems with that Bill, and it failed to do so. So he could not see the GILAB being well deliberated on, especially during the current timeframe and with the elections coming up soon. He said he did not see section 198 as a limitation for opportunities as it was broad. It limited the scope of the security services in total, not just the services of the spy agency. The spy agency must be limited to dealing with threats. Narrowing the focus of the spy agency would not weaken its work against the threats; it would strengthen them because they would be focused on the relevant cases.

Self-regulation by religious institutions should be more independent than the professions because the professions are ultimately accountable to the state because they are the organs of the state. The state’s only concern should be whether there are threats of violence, money laundering, or espionage, which are separate issues. The purpose of vetting is that if the state gives someone certain powers, such as control over money or military power, then there is reason to vet them. There is no reason to vet private people involved in NGOs or religious organisations. Vetting is done before their appointment, and investigation is done after something has occurred. There should not be any prior vetting of religious institutions or NGOs. He asked Mr Loate to repeat his question as he did not understand it.

Mr Loate said in Mr Rosenfeld’s remarks, he had some reservations in that an investigation into an educational institution was conducted by the educational department instead of an educational organisation and asked him to elaborate further on that.

Mr Rosenfeld gave an example of how, in the Health Department, when there was a proposed amendment law, a group of NGOs were opposed to the law. The Chairman of that Committee only allowed NGO members who agreed with the amendment law to submit their suggestions to the Committee. The other organisations became observers of the proceedings. They expressed unhappiness about not being allowed to speak by putting tape over their mouths. The Committee Chairperson got angry and threatened them with an investigation by national security. He had security remove them from the Committee meeting. Mr Rosenfeld said this was the reason they were against the investigation of NGOs and religious organisations. It would affect their ability to participate freely in democratic issues.

Mr Hadebe said, based on Mr Rosenfeld’s response, that there should not be any vetting done on religious leaders. He asked whether he still felt that way after hearing the Chairperson’s example about Mr Bushiri, and the church in the Eastern Cape that attacked and burnt a police station.

The Chairperson added that the aim of this vetting was for the intelligence agency to be proactive in trying to prevent such occurrences from happening again. He said all the submissions would be noted and deliberated on and the views that specifically referred to Bill would be inserted if that was warranted.

Mr Hadebe said there were many instances where intelligence could have prevented such incidents from happening, and this was an attempt to become proactive.

The Chairperson thanked Mr Rosenfeld for his submission. The views of the Association would be noted and deliberated on by the Committee. He allowed Mr Rosenfeld to exit the meeting and announced a five-minute break.

Submission by Afriforum
Mr Jacques Broodryk, Spokesperson: Community Safety, Afriforum, expressed his organisation’s profound concern regarding the expansion of vetting powers proposed in the GILAB. The broad definition of “person or institution of national security interest” raised apprehensions about potential infringements on freedom of association and the right to privacy. They contended that such extensive vetting powers may lead to undue surveillance, particularly affecting civil society.

Secondly, Afriforum’s submission addressed the inadequacies in oversight of mass surveillance capabilities introduced by the GILAB. The attempt to legalise the National Communications Centre’s operations lacked essential safeguards for privacy and freedom of expression. The proposed oversight mechanisms fell short of the standards set by the Constitutional Court, risking unchecked surveillance powers with insufficient protection against potential abuses.

The lack of provisions to strengthen the independence of the Inspector-General of Intelligence, coupled with historical challenges in preventing abuses, politicisation and corruption, raised significant concerns. Afriforum’s submission advocated for comprehensive reforms to establish a robust oversight framework and prevent the recurrence of past shortcomings.

Afriforum contended that the GILAB, with its expanded vetting powers and potential encroachments on constitutional rights, seriously threatened the right to freedom of association. The legislation must strike a balance between national security imperatives and the protection of individual liberties, ensuring that enabling legislation prevails over measures that could unduly restrict civil society’s essential role in shaping democratic discourse. The potential chilling effect on public participation necessitated a careful re-evaluation of the Bill to align with constitutional principles and safeguard the rights enshrined in South Africa’s Constitution.

[Please see the presentation document for full details]

Discussion
The Chairperson said if there was something to be deemed intrusive to the citizens, there was a judge to whom the intelligence agencies would have to apply before doing any intrusive work on the citizens of the country and that should be enough for now. He wanted to know what Afriforum would recommend to strengthen the process.

Ms Kohler Barnard said, in the knowledge that compulsory vetting of heads of religious institutions and NGOs was removed in the original Bill that was submitted, did Afriforum feel [this same principle] was being brought back through the back door in the current Bill. She wanted to know whether that was their main concern.

Afriforum’s response
Mr Broodryk said the impression that the same concerns were being re-implemented through backdoor policies (and the fact that the amendments were not explicit on how those matters should be dealt with) was very concerning.

The Chairperson said the Ad Hoc Committee was a multiparty Committee and not just the ANC, hence other parties would be allowed to add their insights during the deliberations. He thanked Mr Broodryk and allowed him to exit the meeting.

Extension to deal with the Bill
The Committee wanted to request a two-week extension from the National Assembly to deal with the Bill. The Chairperson asked the Committee's support team to explain the process.

Mr Calvin Manganyi, Office Manager, said following the Committee's oral submissions and deliberations, the Parliamentary Legal Team would work on the actual amendments to the Bill [agreed on by the Committee] and develop an A-List. This would comprise the amendments that the Committee would make to the Bill, which would go into the complete Bill that will come out of the process. The Bill that will come out in the end would not be the same as the one submitted to Parliament as it would incorporate changes and views of the public and the members of the Committee, working with the legal team.

For the Bill to be finalised, the Committee and its support teams would need time for typesetting and printing. The process would take long because the service provider that Parliament was working with was unavailable. The Committee support team would need more time so that it could source a service provider so that by the time the Committee presented the Bill to the National Assembly, every process would be followed. Currently, the Committee would have needed to report back to the National Assembly on the Bill by 1 March, which meant the Committee only had about a week left. This would not be possible considering that the Committee was still hearing oral submissions, which would need to be followed by reports on the oral submissions. A lot of work would still need to be done, working on the suggestions and the Bill clause-by-clause. When that process is done, the Committee would still need to discuss and deliberate on the Bill before the process is completed.

The Chairperson agreed that they must request an extension and asked whether they would have to specify the dates they intended to conclude the work.

Mr Manganyi said they would have to provide the specific time and date to the Speaker of the National Assembly.

The Chairperson asked for a mover to submit the extension request.

Mr Stubbe moved and was seconded by Ms Kohler Barnard [inaudible].

The Chairperson said they could request two weeks from the Speaker for now as the [time for the] debate was still to be determined.

Mr Stubbe said the extension could not be two weeks because the Committee would still need to do clause-by-clause deliberations and suggested that they should ask for a three-week extension.

The Chairperson agreed and asked that the letter be drafted.

Mr Stubbe suggested that they should request three weeks from 1 March.

The Chairperson said they were not even sure if they would be given the extension, but it would not hurt them to try.

Submission by COSATU
Mr Mathew Parks, Parliamentary Coordinator, presented COSATU’s oral submission on the GILAB to the Committee. COSATU rejected the GILAB’s shocking attempt to undermine the Constitution and its Bill of Rights, noting that it must be fixed because it was a rude reminder of how fragile democracy was. Some of their main concerns included the definition of threats to national security, which included anything that may threaten ‘equality and equitable access to opportunities’ and ‘measures and activities that seek to advance and promote peace and harmony and freedom from fear and want’. The definitions were vague and ill-defined and would provide a blank cheque to the security services and put millions of South Africans in danger.

COSATU was also concerned that the Bill undermined the constitutionally determined role of the Office Inspector-General of Intelligence, noting their shock that the Bill was drafted without consultation with the Inspector-General. Rushing to conclude a very sensitive Bill in the remaining two months of the 6th Parliament was risking the public hearings being a tick box activity and that would cause the Bill to be constitutionally flawed.

[Please see the presentation document for full details]

The Chairperson said most of the submissions referred to the ‘initial draft Bill’ [which had been published for public comment before the present Bill was sent to the Ad Hoc Committee]. Parliament never received that Bill, and according to the Committee, the current General Intelligence Laws Amendment Bill (GILAB) [B40-2023] was the only one they knew.

Discussion
The Chairperson said the presentation on slide 10 mentioned that the Bill allocated extensive powers for state security to undertake bulk monitoring of public and private communications and said that he understood bulk monitoring to be done externally and not for the citizens of the country. This meant harvesting signals that might threaten the country and not the citizens. He then asked Mr Parks and COSATU’s understanding of bulk monitoring.

On slide 6, they referred to vague definitions of threats to national security in the Bill that would make it difficult for the South African Police Services (SAPS) to investigate, the National Prosecuting Authority (NPA) to prosecute, and courts to convict. The Chairperson’s understanding was that the intelligence services do not usually go to court and the information they gathered was investigated and prosecuted by the relevant structures. He did not see how the SAPS and NPA would be affected and asked for clarity from COSATU.

Ms Kohler Barnard said the Inspector-General of Intelligence was involved and gave some input in drafting the Bill from the outset of the process.

COSATU’s response
Mr Parks said regarding bulk communications, the Bill also included raw communications and non-communications. This was very broad because communication included all forms of communication. He said even after the application to the judges, they wanted to know what would happen next and felt that given the country's recent history, the motivation criteria should be tightened to guide the judges. Stronger checks and balances should be introduced. Regarding the definitions of threat to national security, COSATU made the point that the definitions were very broad and needed to be specified.

He said they raised the point of the Inspector-General of Intelligence because he was publicly quoted saying he was not involved in drafting the Bill, which they found strange. The Office of the Inspector-General should have been involved in drafting the Bill from its inception.

The Chairperson said it seemed that people thought nothing was happening in the High-Level Review Panel in terms of the Zondo Commission, but Parliament was currently implementing the recommendations of the Zondo Commission and the Portfolio Committees were doing that in relation to intelligence services, so it would not be introduced as new in the legislation. The Inspector-General of Intelligence reports to the Joint Standing Committee on Intelligence and some of the issues were highlighted. Whether the Inspector-General agreed with the Minister or not in signing the certificates, he still reported to the Committee, which could come up with binding recommendations. Was this not enough according to COSATU and if that was not enough, what could be strengthened in that regard?

Mr Parks said the abuses that were made in the past in the country’s intelligence services could not be ignored, and that was what formed most of COSATU’s disappointment in the drafting of the Bill, as it did not address some of those abuses. The Bill did not mention what could be done to strengthen the role of the Office of the Inspector-General.

The Chairperson agreed that administratively, the Inspector-General and his office could be improved drastically. He thanked Mr Parks for his submission and assured him the inputs would be included in the deliberations.

The meeting was adjourned.