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Beware South Africa’s securitisation tendencies and their threat to constitutional rights

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Judith February is executive officer: Freedom Under Law.

The state’s intention is ‘not to control us’, but its intelligence laws bill is not reassuring.

Anyone who cares about the rule of law and an open society should be concerned about the General Intelligence Laws Amendment Bill that is speeding its way through Parliament. Were it to pass into law, it would greatly expand state security agencies’ power to conduct security vetting and mass surveillance in the name of national security, opening the door for the state to spy on individuals and organisations engaged in political advocacy and dissent.

It comes against the backdrop of a country scarred by the Zuma years and a president who then operated in the shadows alongside an increasingly securitised state. Who can forget the storming of Parliament by undercover policemen and the disastrous night of the signal-jamming incident at the State of the Nation Address in 2015?

Then there were also attempts at clamping down on open government. As the Right2Know campaign said after Zuma’s resignation: “Zuma will be remembered for the Secrecy Bill, which was at one time his hallmark legislative effort. This Secrecy Bill would have been used to cover up the secret dealings of government institutions and criminalise the work of journalists, whistle-blowers and activists who tried to bring information to the public.”

In large part due to civil society efforts, that bill was never signed into law.

The Cyril Ramaphosa presidency has, though speaking the language of constitutionalism, shown tendencies towards a lack of transparency, casual populism and increased securitisation, from the latest draft of the Immigration Bill to populist language against the Constitution employed by those in Ramaphosa’s Cabinet and his own lack of accountability on the cash found stuffed in his couch at his Phala Phala game farm.

Given the ANC’s electoral insecurities, these instincts towards securitisation, populism and a lack of openness are only likely to increase.

On the face of it, the bill has a laudable aim. It seeks to amend the powers of the South African intelligence services after the recommendations of the Zondo Commission and the 2018 High-Level Review Panel on the State Security Agency. In particular, the bill amends three laws relating to intelligence structures – the National Strategic Intelligence Act, the Intelligence Services Act and the Intelligence Oversight Act – and bifurcates the State Security Agency.

On track to be passed into law before 1 May 2024, the bill has widely been described as malicious and inadequate. Many of its provisions are vague and ambiguous, and allow the intrusion of state security agencies into society in a way that undermines democracy. In a joint statement in December 2023, a wide range of civil society and religious organisations expressed their grave concern at the threat it poses to democracy.

Read more in Daily Maverick: Intelligence Bill before Parliament will give State Security Agency ominous powers

They all shared the view that the bill, if it becomes law, would bring an intrusion of state security agencies into our society in a way that would undermine our democracy, clear the way for continued overreach by these state agencies and lay the ground for a return to State Capture.

So, what are the actual concerns? One of the bill’s primary aims is to remove all restrictions on state security agencies’ ability to spy on people and organisations engaged in political advocacy.

The new definition of ‘national security’ is vague and all-­encompassing, and goes far beyond the legitimate scope of state intelligence.

It does so by unreasonably expanding the notion of national security; increasing state security agencies’ powers to conduct security vetting; and expanding their powers of mass surveillance.

In the current legislative framework, “national security” explicitly excludes lawful political activity, advocacy, protest or dissent from the list of activities that could be deemed to threaten national security.

Conversely, under the bill, “national security” will include “the capabilities, measures and activities of the state to pursue or advance any threat, potential threat, opportunity or potential opportunity… in accordance with… national interests and national values…”

The new definition is vague and all-­encompassing, and goes far beyond the legitimate scope of state intelligence. Almost any matter – including otherwise lawful political dissent – could be construed to fall within its scope. As a consequence, state security structures’ powers will be significantly broadened, giving them licence to proactively seek “opportunity or potential opportunity” to advance South Africa’s national security interests.

A further issue is security vetting. Heidi Swart, research and journalism coordinator at Intelwatch, explains that “security vetting is an invasive process that gives intelligence services a free pass to accumulate and examine exclusive information to determine whether… person[s] or institution[s] [are] fit to be trusted with classified material”. The bill vastly expands this power in the hands of the state, with the vetting of all “persons or institutions of national security interest” becoming no longer discretionary but obligatory.

Given that the target group is ill-defined, almost anyone can be drawn into the state security apparatus. In most democratic countries, vetting is limited to government employees who come into contact with sensitive state information in the course of their employment.

The bill’s vague and overly broad language remains a threat to South Africans’ right to privacy and free expression through unfettered engagement in civil and political life.

Individuals or organisations that fail the vetting process will be denied the right to continue their operations inside the country. Given that the bill does not prescribe criteria by which an individual’s suitability “to access classified information or critical infrastructure” can be objectively assessed, any person or organisation can be denied security clearance for almost any reason.

This raises serious concerns regarding freedom of association, given the way in which these powers have been used to marginalise critics in the past.

Importantly, an earlier draft of the bill made vetting compulsory for anyone wishing to establish an NGO or religious institution in South Africa. Although this requirement has now been jettisoned, it nevertheless reveals a predilection on the part of its drafters to use vetting as a means to exert control over NGOs and other organisations involved in political advocacy.

The bill’s vague and overly broad language remains a threat to South Africans’ right to privacy and free expression through unfettered engagement in civil and political life. Civil society was and remains a key bulwark against an unaccountable state. Those in power may say it is not their intention to control and corral civil society, but now is the moment for us to be alert to any and every possibility of undermining hard-won constitutional rights.

Wheels of justice

Separately, last month was historic for unfortunate reasons. Judges John Hlophe and Nkola Motata were impeached. The wheels of justice grind slowly indeed.

Freedom Under Law (FUL), which was instrumental in seeing these matters to their respective conclusions, welcomed the decision of the National Assembly to vote for the removal of these judges from office.

Judge Hlophe was the subject of a complaint by 11 Constitutional Court judges, dating back to 2008, alleging that he had tried to interfere improperly with a decision in a case involving Zuma. The Judicial Service Commission (JSC) initially dismissed the complaint, but after litigation, including by FUL, the decision was overturned.

After several years of litigation, a judicial conduct tribunal was finally convened in 2018, and in 2021 it recommended that Judge Hlophe be removed from office. In 2022, the full JSC endorsed this finding and referred the matter to the National Assembly. Judge Hlophe’s attempt to review the JSC’s decision was dismissed by a full bench of the High Court in Johannesburg.

Judge Motata was convicted of driving while under the influence in an incident dating back to 2007. In 2010, his appeal against the conviction was dismissed. Two complaints were lodged against Judge Motata, relating to the use of racist language at the scene of the accident and advancing a defence which he knew to be untrue. 

After a lengthy delay, caused in part by Judge Motata challenging the JSC process, a judicial conduct tribunal upheld the complaints in 2018 and recommended his removal from office. The JSC overruled this finding and concluded that the standard of gross misconduct was not reached. In 2023, this decision was overturned in litigation brought by FUL.

In terms of the Constitution, once the JSC has found that a judge is guilty of gross misconduct, Parliament must adopt a resolution calling for the judge’s removal from office with a two-thirds majority. This has now happened.

It is vital to protecting the integrity of the judiciary, and for public confidence in our judges, that there are serious and meaningful sanctions imposed on judges who commit serious acts of misconduct. Although the process, in respect of both judges, has taken far longer than it should have and highlighted many problematic aspects with the process of holding them accountable, the outcome is to be welcomed, as it establishes that serious misconduct will not be tolerated and will result in their removal from office. DM

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R29.

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