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New intelligence bill is anti-democratic, and a unique mix of malice and stupidity

New intelligence bill is anti-democratic, and a unique mix of malice and stupidity

President Cyril Ramaphosa and his Cabinet recently approved draft legislation that will radically expand the definition of “national security” and would open the door for the intelligence service to spy on individuals and organisations in South Africa who are involved in lawful political activity, advocacy, protest or dissent. The draft bill – the General Intelligence Laws Amendment Bill of 2023 – makes for disturbing, even shocking, reading.

It also will require designated persons seeking to establish and operate NGOs or religious institutions (and perhaps churches) to undergo security vetting, and would grant wide discretionary powers to the relevant minister to control the intelligence service (which would be renamed the South African Intelligence Agency).

The draft bill – the General Intelligence Laws Amendment Bill of 2023 – makes for disturbing, even shocking, reading. Many of the proposed amendments are vague, even incomprehensible, thus leaving pivotal questions (such as the criteria to decide which NGO and religious leaders would require security clearance) within the discretion of the minister.

The bill could easily have been written by people who wish to turn South Africa into a national security state, one in which the intelligence service could be put to use to keep the governing party in power.

I know this might sound a bit over the top, so let me explain why I believe the bill is bad news.

Radical change

The bill proposes various amendments to the National Strategic Intelligence Act of 1994, the Intelligence Services Act of 2002 and the Intelligence Services Oversight Act of 1994, ostensibly to give effect to the recommendations of the High Level Review Panel Report on the State Security Agency (which was headed by Sydney Mufamadi).

The panel found, among other things, that the intelligence services “have gone ‘over the top’ in terms of the entities whose members it believes should be vetted”, and that the legislation grants too much discretionary power to the responsible Cabinet minister. The panel thus recommended that vetting be curtailed and that the powers of the minister be reviewed with a view to prevent direct political meddling in the day-to-day affairs of the intelligence services.

Perhaps not surprisingly, the bill seeks to do the opposite. If passed, it will vastly expand the categories of people subject to security clearance, and will grant additional discretionary powers to the minister, often in vague and general terms.

The bill signals a radical change in how the government (at least formally) views “national security”, and in the role it believes intelligence agencies should play in protecting “national security”.

This becomes clear when one compares the proposed change to the definition of “national security” contained in the bill with the current definition in section 1 of the National Strategic Intelligence Act.

Currently, the National Strategic Intelligence Act defines “national security” as the protection of the people of South Africa and the territorial integrity of the Republic against, among others, violent attacks, terrorism, sabotage and serious violence directed at overthrowing the constitutional order.

The current definition explicitly excludes lawful political activity, advocacy, protest or dissent from activities that could ever threaten national security.

The bill now seeks to turn all this on its head, proposing a new definition for “national security” that is as vague as it is confusing. The bill states:

“National security means the measures, activities and the capabilities of the State to pursue, advance [sic] any opportunity or potential opportunity and the security of the Republic and its people including national interests and national values as contemplated in section 198 of the Constitution.”

To the extent that the definition is comprehensible at all, it vastly expands the concept of national security by jettisoning the principle that “national security” essentially deals with threats to the constitutional order. In its place, we get a vague yet all-encompassing definition that would potentially turn almost any matter that could impact on the ability of the state (the drafters probably conflated the “state” with the “government”) to advance “any opportunity or potential opportunity” to pursue, among others, “national values” into a national security matter.

It makes things worse that the definition links these “opportunities” to the “national interest” and “national values”, notoriously vague concepts often invoked by semi-authoritarian governments to justify anti-democratic measures targeting critics and political opponents.

The definition suggests that these concepts are embodied in section 198 of the Constitution. This is not the case. While section 198 refers to equality, peace and harmony, and the ability to seek a better life, it tells us nothing about what these “national values” at the heart of “national security” might be.

Ideological shift

It is also telling that the definition references section 198 instead of section 1 of the Constitution (section 1 lists the values on which the constitutional state is founded), as this underlines the profound ideological shift signalled by the tabling of this bill.

Previously, the ANC government’s formal position was that national security was a matter of protecting the constitutional order. The bill views it as a matter of advancing supposed shared values and interests and going after those who make this difficult.

This shift, to say the least, is alarming. In a constitutional democracy – unlike in a national security state – national security should not have anything to do with lawful political activity, advocacy, protest or dissent, regardless of whether such activities challenge or seek to undermine supposed shared values or national interests.

The proposed change in the definition of national security should be read in conjunction with other proposed amendments that would vastly expand the scope of activities on which intelligence could be gathered domestically.

It would empower the intelligence services to “gather, correlate, evaluate, and analyse” domestic intelligence on “any internal threat or opportunity or potential opportunity or threat or potential threat to national security” in order, among other things, to “identify and impede any threat or potential threat to the security of the Republic and its people”, and to “supply intelligence relating to any such threat to the Department of Home Affairs for the purposes of fulfilment of any function”.

In the absence of prescribed criteria to assess whether a person is vulnerable to ‘undue influence or manipulation’, a person could be denied clearance for almost any reason.

The bill also vastly expands the scope of activities that might constitute “threats to national security”, proposing that any “action or omission” which may “potentially cause damage, harm or loss to the national security” would constitute such a threat to national security.

The bill then lists activities that would constitute such a threat, but bizarrely this list includes affirmative action measures as well as measures “that seek to advance and promote peace and harmony and freedom” (along with terrorism, espionage, pandemics and corruption).

I assume (but who can tell?) the drafters meant to suggest that opposition to, or criticism of, BEE and affirmative action measures or other acts of dissent that may stir up dissatisfaction and may thus lead to disharmony constitute threats to national security.

The bill also proposes amendments that would vastly expand the scope of security vetting. It would do so by amending section 2A(1) of the National Strategic Intelligence Act to change a discretionary power of the Intelligence Agency (may conduct vetting) into a mandatory obligation (must conduct vetting), and by potentially expanding the categories of people who would be required to undergo such vetting to all persons who are employed by or render a particular service to an organ of state; and any person who “seeks to establish and operate a Non-Governmental Organisation or Religious institution”. (Elsewhere the drafters include “Churches” in this list – yet another example of drafting incompetence.)

The bill expands the scope of security vetting, defining it as a vetting investigation aimed at determining “the security competence of a person and if such person is suitable to access classified information or critical infrastructure of the State or is viewed as vulnerable to blackmail, undue influence or manipulation or security compromise”.

In the absence of prescribed criteria to assess whether a person is vulnerable to “undue influence or manipulation”, a person could be denied such clearance for almost any reason. It is not far-fetched to imagine somebody heading an NGO being denied such clearance because their NGO receives money from, say, George Soros or the Bill and Melinda Gates Foundation, or because that person once chatted to the American ambassador.

There is no doubt that one of the main aims of the bill is to remove many of the restrictions that currently limit the ability of the Intelligence Service to lawfully spy on people and organisations inside South Africa.

The bill makes it clear that the minister has the power to decide which individuals falling within the listed categories would be required to obtain security clearance. This would presumably be done in terms of section 6(1)(b) of the National Strategic Intelligence Act which already empowers the minister to make regulations regarding the carrying out of vetting investigations.

But the bill is silent on the consequences of being denied security clearance, which suggests that the regulations issued by the minister will be used to impose restrictions on those who operate NGOs or religious institutions who fail to get security clearance. (The bill also expands the powers of the minister to issue regulations on a variety of other topics.)

Read more in Daily Maverick: NGOs are under attack by the South African state again – including the knitting clubs

It must be clear from the above, that some of the provisions in the bill make little sense (what the hell does “potential opportunity to national security” mean?), but there is no doubt that one of the main aims of the bill is to remove many of the restrictions that currently limit the ability of the Intelligence Service to lawfully spy on people and organisations inside South Africa. (Of course, as the High Level Panel Report makes clear, this has not stopped members of the Intelligence Service from unlawfully spying on people and organisations in South Africa, or from using unlawful methods to do so.)

When I first heard that the bill would require individuals heading NGOs to obtain security clearance, I assumed that this was a case of Hanlon’s Razor, the rule of thumb that one should never attribute to malice that which is adequately explained by stupidity.

After studying the bill, I strongly suspect that the document is the product of a happy marriage between the two. DM


Comments - Please in order to comment.

  • Homo Capensis says:

    Excellent analysis. This bill should be opposed and protested openly before it is shoehorned in by the ANC. It is a very significant milestone on the road to the autocratic totalitarian state that the SACP/ANC aspires. It will, if enacted, issue in a dark and ominous era, wherein civil society is bullied and cowed and incapacitated from holding the government to account for its manifold abuses. This terrible (and terribly drafted) autocratic bill should be loudly and actively opposed by all democratic South Africans.

  • Homo Capensis says:

    Excellent analysis. This bill should be opposed and protested openly before it is shoehorned in by the ANC. It is a very significant milestone on the road to the autocratic totalitarian state that the SACP/ANC aspires. It will, if enacted, issue in a dark and ominous era, wherein civil society is bullied and cowed and incapacitated from holding the government to account for its manifold abuses. This terrible (and terribly drafted) autocratic bill should be loudly and actively opposed by all democratic South Africans.

    • Gordon Bentley says:

      Agreed Homo Capensis.
      Let’s all get together and yes, make a big noise. But let us also involve some friendly/decent “Legal Eagles” to assist us to quote the Constitution and make the Cadres realise that we know what they are up to and we are not impressed.

  • Greeff Kotzé says:

    The “vetting” is a fig leaf. They want to be able to spy on and track, continuously and without pause, the activities of NGOs and church leaders — for political reasons — and justify that as merely lawful “vetting” every time they get caught doing so. This attempted rebranding and dictionary-rewriting won’t make the SSA-by-any-other-name any less ominous.

    Does the latest Public Protector-candidate also have SSA credentials like Mkhwebane did, I wonder? Let’s not forget how “vetting” was infamously used to bring the agency in through the front door there. Our Chapter 9 institutions are likely considered to be high-value targets. Did they get to the IEC yet?

    The SSA, undoubtedly the true authors of this proposed bill, must have been furiously taking notes of viable strategies during the recent Zim elections, to complement a certain faction’s decades-long “confuse/disrupt/control” campaign.

  • Martin Neethling says:

    De Vos suggests that the bill ‘could easily have been written by people who wish to turn South Africa into a national security state’. It is reasonable to think that indeed this is the case. Increasingly, at far greater frequency and with bolder disregard to our constitutional order, the ANC/SACP are pushing ahead with their NDR objectives. Anthea Jeffery’s excellent ‘Countdown to Socialism’ in simple, scholarly language outlines how the playbook unfolds, and weekly, opening the Business Day provides the update. So much of the bill is problematic or downright terrifying, but by far, and most tellingly, is the shift of definition of National Security from an accepted concept that defends our constitutional order to basically any ‘value’ (opinion, point of view, issue, belief) that the State disagrees with. This would be intolerable. This bill has to be struck down entirely. Even better would be to have its drafters and their handlers consigned to the back benches.

  • Iam Fedup says:

    The headline is an exact description of the ANC: anti-democratic, and a unique mix of malice and stupidity. But most South African voters do bit have the insight to truly see that this is worse than the laws enacted by the Nats in the old days because of the vague descriptions. What, for example, are our national values? The values of the scoundrels in charge? Or the decency of 95% of all people? The analysis by Pierre de Vos is brilliant, and at the risk of duplicating what other commenters have said, we MUST fight this tooth and nail – or end up like all other despicable dictatorships that this dreadful regime admires: China, Russia, North Korea, Iran, Cuba, Venezuela, and more.

  • Tim Price says:

    This has “unconstitutional” written all over it. The criminal kakistocracy strikes again.

  • Heinrich Holt says:

    The only remaining hope is the lack of intelligence of those politicians who think they are intelligent. But then again, that is why we are where we are in the first place.

  • Jon Quirk says:

    It sounds from the above analysis, this draft proposed bill breeches almost every check and balance that our constitution demands, and as such, if the ANC is truly a constitutionally-based party, based on democratic principles, it too must oppose.

    The basic tenet of any such bill in a constitutional state, must always be based not upon what a “good citizen party” in power, but what an “evil Trumpian party” might do.

    This is the strength of the American constitution – it can cope with, and rein back, Presidents who seek to be unconstitutional – we need to have the same approach.

  • Jon Quirk says:

    A democratic, people-centric constitutional state that needs powers to spy on the very citizen-base that gives it constitutional credibility?

    The ANC would appear to be showing it’s true, totalitarian colours! I think our President dreams of being called President-for-life Xi!!

  • Denise Smit says:

    The President in England said in 2019 when asked what he would do regarding the State Capture : “Watch this space”. He has surely lived up to it – it can even be worse than the Zuma years. And he is trying to live up to his promise to fry the frog alive. I am surprised at what lengths they are willing to go to keep power at al spheres. I suppose this laws must now take the place of the cadres that be dewill not be deployed. How do we stop it? Everyone must Malema style get 10 people to vote for the coalition pact in 2024. We will not be sacked if we do not achieve it. The ANC\EFF will continue to bring the country down and us with it. Denise Smit

  • Cachunk Cachunk says:

    “Unique mix of malice and stupidity” sums up the ANC nicely, although maybe throw “arrogance” into that mix, as they think we are too servile not to push back on this disaster of a bill. One silver lining: it shows how worried the scumbag ANC are about losing power (democratically)…

  • Billy Meyer says:

    My understanding is that bills of this sort are being passed in the UK and other jurisdictions around the world, so is possibly part of a generally malicious antidemocratic trend

    • Iam Fedup says:

      The difference is that most democracies have other mechanisms in place to kill these types of bills. They include upper houses, supreme courts, and, of course, a free press, (including the ability of publications such as this esteemed journal,) to expose and publish the lies fed to us.

  • botha.abrie says:

    This is another step in taking centralised control of every institution etc. in South Africa. Not surprising at all. The Communist ideology is part and parcel of the ANC which is under control of the SA Communist Party. This new Bill must never be allowed to take effect.

  • John Cartwright says:

    Someone’s been spending too much time in China.

  • rogerconroy says:

    The drafters don’t even grasp simple concepts of English grammar such as that a transitive verb without an object is gibberish.

  • Henry Coppens says:

    All part of the plan towards the glorious shining edifice of the ANC NDR

  • Confucious Says says:

    It doesn’t suit the chiefs if the people aren’t bowing their will. Sisulu, Zuma and Mkwebane et al have already said that the Constitution is “flawed”. It doesn’t suit their egos and dictatorial tendencies to be questioned or disallowed from doing whatever they please.

  • Hilary Morris says:

    What a terrifying prospect of how South Africa might become should this bill be passed. I was tempted to say the drafters clearly do not have the basic skills of understanding the English language, as much of what has been quoted is literally a word salad. However, the intent is pure evil and perhaps highlights why Ramaphosa attended the Zimbabwean inauguration of their very own autocratic despot. He is really becoming more dangerous than Zuma ever was.

  • The ANC government must have enjoyed the hard COVID restrictions when essentially we were a security state. This will be the step needed for Zim2 in SA. We must oppose this with everything that we have.

  • Karl Sittlinger says:

    For the ANC, democracy only suited them when they had the easy and full majority to ramm home any policies to stay in power and keep on feeding off the cadre trough. They have always had autocratic tendencies, and little more can be expected from a party born out of violence. How is this surprising to anyone? This is nothing new, we have seen this behavior develope for a good 20 years and more.

  • Vincent Britz says:

    It’s definitely all part of there plan to stay in power, that’s why the president won’t allow for the lady-R report findings. Don’t be surprised if everything that was off loaded in the middle of the night from Russia, isn’t there stock for there take over of the country when the ANC lose in 2024.
    Everything that they are doing right now is to place pressure on the next governing party that will take over. The ANC has destroyed this country and they are going to keep on destroying thus country for there own benefit. They absolutely don’t care about anybody but themselves and their corrupt family’s and friends. If we the people of South Africa don’t stand up to these sick corrupt ANC politicians, we will end up worse off than Zimbabwe!!!

  • Hari Seldon says:

    And this is why the ANC wants to partner with China and Russia – to learn how to turn SA into a surveillance state. Pierre please provide further comment on whether this Bill is likely to be found unconstitutional by the CC. Or is there a good chance it could be enforced in the long run?

  • Gordon Bentley says:

    I suggest, DM is a good start; but we need more than just comments, if we are serious about opposing this bill which could rob all decent citizens of SA of their constitutional, democratic rights:
    We need quick Action. We also need some decent “Legal Eagles” who will take up our case and run with it.
    Any further suggestions, Commentators?

  • Oom Dugk says:

    How does one exert influence without voter representational politicians?

    This is the root problem/issue.

    “ …(in South Africa) proportional representation hands power to party bosses – which in turn disempowers voters. MPs feel beholden to their parties, rather than to the people who elected them.

    Article: South Africa is ripe for electoral reform. Why its time might have come.
    From: The Conversation

  • shimseamus says:

    Laws like this are a BRICS standard, no? Modi, Putin, Xi, Bolsanaro (let’s see what Lula does), MBS, El-Sisi … Ramaphosa and his cabinet right in there

  • John Laurence Laurence says:

    “President Cyril Ramaphosa and his Cabinet recently approved draft legislation” Do these idiots just sign off these drafts without reading them? Otherwise how could so called intelligent leaders sign off a draft of a bill with, as De Vos explains, incomprehensible sections. RamaIdiot has far too much admiration for the likes of Russia and China for our good.

  • Vas K says:

    Strait out of Putin’s and Xi’s kitchens. Mr. Ramaphosa seems to be a keen apprentice.

  • Looks like our ANC minsiters have been learning something from the Russians and Chinese. People in both countries are too afraid to be interviewed on TV and express their real opinion of their governments. This must not happen here in SA. I hope that opposition parties have taken note of this proposed bill and are doing something about it. After all, that is their job.

  • Patrick Devine says:

    “New intelligence bill is anti-democratic, and a unique mix of malice and stupidity”

    You could easily substitute “New intelligence bill is” with “The ANC is” or “The Cadres are”

  • Kenneth Dixon says:

    Another step to controlling SA and the elections next year, if this type of thing is not stopped, we WILL be the next Zimbabwe.

  • justin11 says:

    We are but a breath away from the President being defined as the “physical embodiment of the state” and extend the activities of the intelligence services counter criticism of the president.

  • Frank Janssens says:

    As a member of BRICS you don’t have to search where this inspiration came from. With Wagner,now a Russian entity, operational in South Africa, they will not hesitate to call the Daily Maverick soon a ‘foreign agent’ for that matter. Creepy.

  • frances hardie says:

    Let them write. Their jokey podcast irritates.

  • Walter Spatula says:

    Harsh words from someone who generally provides a balanced view. This is clearly bad law.

  • Con Tester says:

    With this bill, the ANC is riding roughshod over some of its the principles it claims to hold, however few and feeble those may be. Instead of actually fixing the flaws and deficiencies that the Mufamadi High-Level Review Panel identified, this is a clear attempt to rewrite the laws so that those flaws and deficiencies become legal non-issues. It’s therefore driven primarily by the malice by those whose acquisitive megalomania and conceit won’t permit them to relinquish power or authority, only to pursue ever more of the same.

    “Hegemonic control of all the levers of power in society” is just too powerful a drug for small, venal minds.

  • Lisbeth Scalabrini says:

    SCARY! I see a dark future ahead😱

  • Des Clark says:

    With friends like China, Russia, India, Brazil, a new crop of totalitarian leaders joining this club and neighbours like Zimbabwe, this is not entirely surprising. Elections are around the corner and most, if not all, predictions point to the real possibility of the removal of the ANC from power, something the leaders of the coterie of cadres must mitigate and guarantee against at all costs.
    This bill must be opposed at all costs.

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