Issued by the FW de Klerk Foundation on 28/03/2024

In the ongoing legislative process surrounding the General Intelligence Laws Amendment Bill [B40-2023] (“GILAB”), the proposed amendments by the Ad Hoc Committee warrant careful scrutiny in light of concerns articulated by the FW de Klerk Foundation. The revisions put forth aim to address key issues identified in the original Bill, including problematic definitions, mandatory vetting, and compliance with constitutional standards. Passed by the National Assembly on 26 March 2024, the Bill aims to split foreign and domestic intelligence, reversing the establishment of the State Security Agency (“SSA”) and implementing recommended reforms.

Refinement of Definitions

The proposed amendments to refine key definitions within the GILAB aim to rectify the significant threat posed by the Bill’s initial lack of clarity and specificity in its definitions. The original version of the Bill left crucial terms such as “threat,” “national security,” and “person or institution of national security interest” undefined or ambiguously defined. This ambiguity presented a grave threat as it could have enabled broad interpretation and potential misuse by intelligence agencies. 

The Foundation’s written submission aptly highlighted the risks associated with such unrefined definitions, emphasising the potential for overreach and infringement upon constitutional rights. Therefore, while the proposed changes represent a positive step towards addressing these concerns, thorough analysis and refinement are necessary to mitigate the initial threat posed by the Bill’s ambiguous language and ensure alignment with constitutional principles. 

The inclusion of circular definitions, which loop back on themselves, further compounded the issue, potentially allowing for subjective interpretation rather than clear, objective application. Public participation was crucial in highlighting these deficiencies and advocating for the necessary refinements to uphold democratic principles and protect citizens’ rights.

Mandatory Vetting

Proposed changes to mandatory vetting under the GILAB are reflected in amendments to specific clauses such as clause 1(r) – “security competency test” and the new provisions introduced in clause 4. These amendments seek to refine the scope of mandatory vetting and address concerns raised by the Foundation regarding potential infringements of constitutional rights. The revised clauses aim to clarify the criteria for conducting security competency tests, emphasising the need to assess individuals’ suitability for accessing classified information or critical infrastructure while minimising the risk of arbitrary infringements on privacy and political rights.

While the amendments to clause 4 primarily focus on the establishment and functions of the intelligence service, they indirectly impact the vetting process by ensuring that intelligence activities are conducted within legal frameworks and with due consideration for constitutional rights. By instituting counterintelligence measures, gathering departmental intelligence, and providing national security briefings, the amendments aim to enhance the effectiveness of intelligence operations while still upholding constitutional principles.

In clause 3, there are adjustments made to certain definitions within the Bill, which indirectly impact the scope and application of mandatory vetting requirements. Specifically, clause 3 omits a reference to “a person or institution of national security interest”. This omission suggests a refinement in the criteria for determining who is subject to mandatory vetting investigations, potentially narrowing the scope to more clearly defined categories of individuals or institutions.

Regulation of Bulk Surveillance

The proposed changes to clause 2 of the GILAB seek to enhance oversight and regulation of intelligence activities, particularly regarding bulk interception and surveillance. The amendments introduce stringent procedures for bulk interception, emphasising judicial oversight through approval by a retired judge appointed by the President, aligning with constitutional principles and international agreements. 

Additionally, the insertion of the new clause 4 outlines specific functions of the “National Communications Centre” concerning national security threats. These functions include gathering, correlating, evaluating, and analysing intelligence to identify threats, as well as coordinating cybersecurity activities to impede cyber-enabled threats. By expanding the Centre’s responsibilities in this regard, the amendments aim to enhance the capacity to detect, assess, and respond to various forms of threats that may pose risks to national security.

Consequently, the FW de Klerk Foundation supports these amendments, advocating for robust judicial oversight mechanisms and safeguards to protect individual rights. The Foundation has consistently emphasised the importance of aligning surveillance practices with constitutional principles, particularly privacy rights.

Clarity on “Threat to National Security” 

Proposed changes regarding the clarity of “threat to national security” within the GILAB are evident in amendments to clause 1. In this clause, several changes aim to streamline and clarify the concept of “national security threat.” This includes omitting phrases like “potential opportunity” and “potential threat” while removing references to “national security” from certain definitions. These adjustments suggest a more precise delineation of what constitutes a threat to national security, possibly to prevent ambiguity and ensure a focused approach to addressing such concerns.

Comparing these proposed amendments with the Foundation’s written submission highlights a concerted effort to address concerns regarding the potential infringement of constitutional rights, particularly freedom of expression (section 16) and assembly (section 17), which protect citizens’ rights to engage in political discourse and peaceful protest without fear of arbitrary state intervention. 

Strengthened Oversight Mechanisms

The proposed clauses significantly strengthen oversight mechanisms within the intelligence services by introducing rigorous procedures for accountability and transparency. Clause 7 outlines a detailed process for appointing the Deputy Inspector-General of Intelligence, ensuring that the nominee is subject to approval by the National Assembly, providing parliamentary oversight over key appointments within the intelligence hierarchy. Moreover, it delineates the powers, removal procedures, and term limits for the Deputy Inspector-General, enhancing oversight by establishing clear guidelines for their role and responsibilities.

Similarly, clause 11 mandates that the budget allocated to the Inspector-General of Intelligence be appropriated by Parliament, with expenditures governed by the Public Finance Management Act (“PFMA”). This provision ensures that financial oversight is exercised by the legislature, preventing misuse or misallocation of funds within the intelligence apparatus. By subjecting budgetary decisions to parliamentary scrutiny and adherence to established financial regulations, this clause enhances transparency and accountability in financial matters related to intelligence activities.

Conclusion

The amendments to the GILAB represent significant progress in rectifying issues of ambiguity and enhancing oversight, underscored by its passage in the National Assembly. However, ensuring a delicate balance between safeguarding constitutional rights and implementing necessary security measures remains paramount. 

While these amendments mark positive strides, continued vigilance and refinement are essential to maintain this equilibrium, thereby upholding democratic principles and protecting individual liberties enshrined in the constitution.