DECODING THE GILAB:
UNDERSTANDING THE DANGERS

Issued by the FW de Klerk Foundation on 21/02/2024

 

Introduction:

Parliament is currently considering the General Intelligence Laws Amendment Bill (“the GILAB”) which poses a significant threat to the rights and freedoms of South Africans. The erosion of privacy, the empowerment of state interference, and the stifling of dissent are not merely theoretical concerns, but tangible risks that this Bill brings to the forefront. 

The Bill, which aims to amend three intelligence laws – the National Strategic Intelligence Act, 1994; the Intelligence Services Act, 2002; and the Intelligence Services Oversight Act, 1994 – has drawn sharp criticism from various civil society organisations. 

The FW de Klerk Foundation, dedicated to upholding the Constitution and ensuring our constitutional democracy becomes a reality for all South Africans, has made both written and oral submissions to Parliament. In addition, the Foundation has also participated in the public hearings on the Bill. 

Concerns:

1. The Bill’s crucial terms are either undefined (e.g. “threat”) or defined so ambiguously that they are unworkable (e.g. “national security” and “opportunity or potential opportunity”).

Others are simply overly broad and fail to achieve their purpose. For example, “security competency test” is defined in such a way that it could include “a vetting investigation to determine the security competence of a person or institution and if such person or institution is viewed as vulnerable to blackmail, undue influence or manipulation”.

Now, while every citizen in the Republic may, at one point or another, be vulnerable to manipulation, that does not mean that they are a threat to national security or that the State should be able to administer a security competency test on them.

2. By equating activities inconsistent with section 198 of the Constitution (which has to do with South Africans’ resolve to live as equals, in peace and harmony, and to be free from fear and want, and seek a better life) to “threats against national security”, the Bill effectively allows for compulsory vetting investigations to be done against individuals striving to exercise their rights. 

Activists advocating for social justice, marginalised communities seeking equality, citizens participating in peaceful protests, and individuals expressing dissenting opinions, could thus be included in the Bill’s ambit of “threats to national security”. Civil society, therefore, could be seen as persons or institutions of national security interest. 

By conflating lawful activities with threats to national security, the Bill erodes the foundation of democratic governance and risks silencing voices that are critical for advancing social change and human rights in South Africa. 

The broad discretion granted to intelligence agencies in identifying “persons or institutions of national security interest” lays the groundwork for arbitrary decision-making and the abuse of power. 

Cumulative effect:

The net effect of the Bill on the average South African is profound: It could lead to a chilling effect on the right to freedom of expression (section 16), directly curtail the right to privacy (section 14), infringe on political rights (section 19), hinder the freedom of trade and occupation (section 22), and erode the founding value of the rule of law (section 1(c) of the Constitution). 

For reasons fully canvassed in the Foundation’s written submission, the Foundation views the GILAB as being unconstitutional.

Remedies:

In response to these substantial concerns, the Foundation proposed the following remedies to Parliament:

  1. Definitions should be clear and precise so that they are workable and prevent arbitrary interpretations and abuse of power. (The Foundation suggested several possible definitions in our written submission.)
  2. Compulsory vetting investigations should be limited to “on categories of applicants and employees of organs of the State and Departments of State”.

Conclusion:

It is imperative that Parliament carefully considers the implications of the GILAB and takes decisive action to address its flaws. By heeding the concerns raised by civil society organisations, legal experts, and concerned citizens, Parliament can ensure that our intelligence laws remain faithful to the spirit of the Constitution and the aspirations of all South Africans.