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It’s not too late to revise the ‘Spy Bill’ to strike a better balance between power and accountability

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Bavesh Padayachy is the Governance, Risk and Compliance Officer at TSL Group SA and is a student of the Stellenbosch University Law Faculty. He has qualifications in Cybersecurity and Governance, Risk, and Compliance Audit from Harvard University and OCEG & GRC Certify, and is an active member of the Institute of Internal Auditors South Africa.

Recent revisions fall short, with the bill failing to strike a balance between empowering state intelligence agencies with the power to act against threats to the nation, and protecting the rights and freedoms of South Africans.

The controversial General Intelligence Laws Amendment Bill of 2023, recently passed by the National Assembly, has come under much scrutiny. The bill — nicknamed the “Spy Bill” — is currently before the National Council of Provinces, before being sent to the president for assent.

Initially intended to address the shortcomings exposed by the State Capture Commission Report and the High-Level Review Panel Report on the State Security Agency, the Bill aims to restructure the legislative framework concerning national intelligence services to prevent corruption and abuse of power.

Ironically, in so doing, the revised bill creates multiple avenues for privacy concerns, and an overarching abuse of power by the Executive.

At the heart of the controversy lies the issue haunting the bill: its ambiguous definitions, which leave ample room for misinterpretation and abuse.

For instance, the vague definition of “national security” limits itself not only to tangible threats but also vague notions of an “opportunity” or “potential threat”. Such ambiguity undermines the values of democracy entrenched in the Constitution, allowing any dissent or opposition against the government to be classified as a “potential threat”.

Read more in Daily Maverick: South Africa needs national security, but not at the expense of constitutional rights

It prevents the exercise of a healthy democracy; the bill could prevent movements such as the Zuma Must Fall March and the National Shutdown held by the EFF from ever occurring, under the pretence of protecting the nation. By failing to anchor these definitions within the Constitution’s founding values, the bill risks undermining the very principles it seeks to uphold.

Moreover, the bill’s subsequent provisions raise serious concerns about the degradation of democratic values and separation of powers. Following the Constitutional Court’s ruling in the amaBhungane case, in which the court declared domestic mass communication surveillance unconstitutional to the extent that it was not cemented in legislation, this bill acts as a vehicle to enable the state to conduct foreign communication surveillance.

Lack of clarity on foreign interception

The lack of clarity regarding the scope of foreign interception raises concerns about the right to privacy of South African citizens, as the bill does not specify whether foreign mass surveillance extends to foreign social media platforms such as WhatsApp, Facebook, Twitter or Instagram. 

While recent revisions to the bill, including the removal of the domestic mass surveillance communication clause, represent a step in the right direction, they fall short of addressing the overarching issue of the legislation’s vague nature.

In its present state, the bill risks exacerbating the very concerns it aims to rectify. It fails to strike a balance between empowering state intelligence agencies with the power to act against threats to the nation, and protecting the rights and freedoms of South Africans. 

To truly uphold the principles of democracy and accountability, it is imperative that the bill undergoes further scrutiny and revision by the National Council of Provinces to reflect a just framework for national security, which not only protects the rights of citizens, but aids in the fight against corruption and the prevention of State Capture. DM

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