“Let’s expand that definition to include vetting for purposes of identifying and detecting threats to national security,” Minister in the Presidency Khumbudzo Ntshavheni, who is responsible for state security, told MPs on Thursday.

This was one of the additions the State Security Agency (SSA) wanted to include in the General Intelligence Laws Amendment Bill, or Gilab, following public hearings and submissions that were sharply critical of the proposed legislative overhaul.

Acting SSA director-general and former ambassador Nozuko Bam explained that given increasing threat levels, security vetting should not be limited to persons with access to classified information, but also include “persons of national security interest”.

As an example, Bam explained how the agency “received requests (that) there is this particular person, who wants to do business in our country. They want to know about that person. We are then required to do a bit of due diligence.” 

Bam pointed out how one year the SSA was asked to vet supply chain staff – not because they have access to critical information, but because “we realised there was this increasing level of threat”.

As part of such additional vetting powers, the SSA would be empowered to access information regardless of any laws to the contrary. And security vetting is to be known as “security competency assessment”.

Lawmakers seemed satisfied with the SSA responses to their earlier questions that highlighted security vetting was voluntary and linked to employment in, for example, government or state-owned entities.

Concern about spooks’ overreach had emerged during the Gilab public hearings and submissions. 

A joint statement by 38 civil society groups, including Section27, My Vote Counts, Open Secrets, the Helen Suzman Foundation and the Centre for Environmental Rights raised the issue of expanded vetting powers.

“The Bill’s definition of ‘person or institution of national security interest’ is so broad that it potentially gives the state the power to vet any private individual or institution… Security vetting is extremely intrusive and this power is wide open to abuse,” they said.

Bulk interception

Thursday’s push by the SSA for greater vetting powers came amid a debacle on the subject of interceptions.

State Security Agency Deputy Director-General for Africa, Joyce Mashele, acknowledged they had “conflated” bulk and domestic interceptions in the proposed legislation, and promised bulk interceptions would be exclusively used by the foreign intelligence services.

“The IGI [Inspector-General of Intelligence] will conduct continual oversight and provide assurance to the minister and JSCI [Joint Standing Committee on Intelligence] that bulk interception will not target individuals.”

In effect, SSA downplayed the major boo-boo. The initial proposed legislative measures on bulk interception, or the monitoring of all internet traffic, established a separate interception centre but removed oversight by the IGI and sparked sharp criticism.

According to Ntshavheni, a separate new law on “targeted domestic interception” under the supervision of a judge and the IGI was in the making.

Subsequently, SSA officials seemed to explain this legislation was necessary because targeted domestic interceptions weren’t just about communication, but also domestic intelligence services having to contend with other threats like foreign intelligence and non-state actors.

Or, as SSA DDG Loyiso Jafta put it, “The legislation that’s coming will be intended to tightly regulate, but to also give enough latitude for domestic intelligence operations.”

However, it remains unclear how such a new SSA interception law would relate to the justice department-driven amendments to the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica) Parliament had passed by 6 December 2023. 

This amendment legislation arose from the landmark 2021 Constitutional Court amaBhungane judgment. It declared Rica unconstitutional for failing to sufficiently protect the independence of the so-called bugging judge, who deals with interception requests from the police, SSA, the military and others. 

Significant issues including “increasing unlawful interceptions of private and public officials” have emerged regarding wiretaps, according to the 2021 report by Parliament’s intelligence oversight, the Joint Standing Committee on Intelligence (JSCI).

Read more in Daily Maverick: Intelligence committee report shows legislators knew of SSA malfeasance – and ‘bugging judge’ lifts lid on ongoing unsavoury wiretaps

In addition, the Constitutional Court declared bulk interception unconstitutional – and also ruled that foreign bulk interception, or monitoring all internet traffic, violated privacy provisions.

This Rica Amendment Bill, in President Cyril Ramaphosa’s in-tray awaiting signature into law, deals with the changes the Constitutional Court required – from bolstering the so-called bugging judge’s independence, establishing public advocates to post-surveillance notification, to, among others,  journalists and lawyers.

Grip of secrecy

On Thursday, the SSA was not only criticised for a shoddy Gilab brought to Parliament – its tabling was also messy – but it all seemed to remain untethered in the smoke and mirror cliches of spookdom.

Concessions were few and far between. 

The word “potential” was dropped from “potential opportunity” in relation to national security because it was ambiguous and could result in abuse. 

And the threat to national security – it had included “any activity that seeks to harm the advancement and promotion of peace and harmony and freedom from fear and want for South Africans” – would now be defined as “impending danger or serious harm to the republic as one sovereign democratic state”.

But no concession was allowed to undermine the agency’s grip on secrecy in its affairs. 

Current IGI Imtiaz Fazel, who was not consulted in Gilab’s drafting, had wanted his recommendations, or certificates, to be akin to annual reports to ensure they were implemented.

Read more in Daily Maverick: Vague intelligence law amendments open door to ongoing abuse by State Security Agency

That was rejected by the SSA – as were requests from the IGI and the statutory National Intelligence Coordinating Committee to be allowed to hire their own staff.

“If the IGI’s recommendations are binding, then that would expose the IGI certificate process to legal review,” said Mashele. 

“Where there is disagreement, the minister should be approached, and if that fails, the matter be referred to the JSCI for final arbitration.”

In other words, keep it all in-house and behind closed doors.

Except that’s not what was recommended in the 2018 High-Level Review Panel on the State Security Agency, which sharply criticised unnecessary levels of secrecy in the politicised and factionalised agency where maladministration remained rife. 

Such criticism also emerged in the 2021 Prof Sandy Africa panel on the July 2021 violence, and the 2022 Zondo Commission reports.

Few of the recommendations to ensure an end to malfeasance and to promote greater transparency have found their way into the Gilab. 

It effectively implements just one key recommendation – the separation of domestic and foreign intelligence services.

The ad hoc committee will now finalise the Gilab and its report on this legislation by 15 March. 

If a vote is scheduled before the National Assembly rises at the end of March, the General Intelligence Laws Amendment Bill would have been pushed through in an unusually short four months. DM