South Africa

The Spy Bill, cousin to the Secrecy Bill.

By Sipho Hlongwane 13 February 2013

Hot on the heels of the Protection of State Information Bill comes the General Intelligence Laws Amendment Bill. It has the same effect – it will lessen accountability from spy agencies and give the ministry wide powers to spy on the public. Be even more afraid. By SIPHO HLONGWANE.

South Africa is not known to have aggressive spy agencies. Our local spies are simply not mentioned in the same breath as spooks from the CIA, Israel, UK, Syria, or any of that lot. One of the main reasons for this is that when the new democracy was formed, power was split as much as possible to prevent its abuse. This principle was applied to the spy agencies as well, meaning that we have several that report to different authorities. For example, Crime Intelligence is housed within the police, which is separate from the National Intelligence Agency.

A new amendment to the laws governing spies, currently before Parliament, seeks to give spies lots of power, and the minister of state security even more, and it has some critics worried. Called the General Intelligence Laws Amendment Bill, it will create a centralised intelligence agency, allow snooping into any “foreign” electronic communications without a warrant, give the spy bosses a mandate to protect “political stability” (which is ill-defined) and also give the minister blanket rights to appoint people and classify information without really explaining why. 

The fiddling with the security agencies is not happening in a vacuum – it comes after years of evidence that serious political interference and manipulation often take place to serve whichever master is at the helm in his bid to stave off rivals.

In 2006, following a tumult of intelligence scandals, the minister at the time, Ronnie Kasrils, established the Ministerial Review Commission on Intelligence, chaired by Joe Mathews, a former deputy minister. It found that some aspects of the intelligence service would routinely flout Constitutional rights, and that there was also little scope for public oversight, a lack of effective controls against abuse and a generally over-broad mandate for the sector.

According to civic organisation Right2Know, the new law does nothing to address the concerns highlighted by the Mathews Commission and actually moves in the opposite direction. Murray Hunter, the R2K national coordinator, said that state security minister Siyabonga Cwele had acknowledged that there was a need for a policy review, but refused to use the commission report as any kind of guideline. The minister is bizarrely pushing the law through before the policy review, which goes against the usual order – where new legislation is preceded by new policy and public consultation.

“So at least from a policy point of view, our biggest problem here is not with specific aspect of the draft law, but with the fact that the ministry of state security has introduced a law without opening up the policies to a national dialogue. It’s not only undemocratic, but self-defeating,” Hunter said.

One of the loopholes raised by R2K has been the foreign correspondence clause, which would give spy agencies carte blanche to snoop on any communication coming from a foreign service. In other words, they would be allowed to snoop in on your Facebook, Twitter, email and even Skype calls without first obtaining the permission of a judge. Rather than dealing with the complaints as a matter of the legislation about to be passed, the ministry is saying that they will be talked about when the policy review process kicks in, after the law is passed.

Why the rush to make the law before allowing a spring-clean to happen?

Cwele’s explanation is that the bill does not a policy shift make at all. He said: “This is part of the phase one process which started in 2009 following the Presidential Proclamation that established the State Security Agency. This bill is merely addressing such issues that are technical in nature and does not introduce policy shifts.”

He was very upset when the Democratic Alliance’s David Maynier said that the bill would take the country back to Apartheid by re-creating the old, centralised intelligence agency. 

“We must avoid creating wrong perceptions about this country going back to Apartheid. Apartheid was a very painful experience and a lot of people died. We can never enact laws which take us back to such a period,” Cwele said.

The old agency was folded into the National Intelligence Agency anyway, he argued, so the new centralisation was actually a part of a review of our architecture so that we are well-positioned to secure our people and the constitutional democracy.

Cecil Burgess, the head of the parliamentary ad hoc committee reviewing the law, also said that there was no problem with the bill.

He said: “This is not an attempt to take South Africa into a state of secrecy, where there is an intelligence entity called the SSA that will be running the country in the background, which will subject us to serious oppressive conditions.”

However, without narrowly defining the mandate of intelligence agencies, providing proper judicial oversight and not allowing an expansion of the power to intercept foreign communication, the bill does not expand the size of public oversight. It does exactly the opposite, in fact.

The trend is not isolated to the intelligence services. Though most likely a product of the same bureaucrats who are also ramming through the Protection of State Information Bill, it is also the change creeping into the police service through militarisation.

“If people are concerned about the emergence of an increasingly powerful and unaccountable ‘securocratic’ element in government, there is the makings of it here. It’s not just in the Spy Bill and the Secrecy Bill, it’s the militarisation of the police, the use of national key points, and so on,” Hunter said.

Though coming from what initially appears to be a fairly innocuous policy debate, the new Spy Bill could be as damaging as the Secrecy Bill in terms of the powers it takes away from the people and gives to the government. It certainly ought to be met with as much fear and revulsion. DM

Photo: State security minister Siyabonga Cwele (Reuters)


"Have no fear of perfection - you'll never reach it." ~ Salvador Dalí