Issued by the FW de Klerk Foundation on 19/12/2023


The General Intelligence Laws Amendment Bill (GILAB) has undergone recent revisions, with the removal of a contentious clause that would have subjected non-governmental organisations (NGOs) and religious institutions to state security vetting. This move, albeit a positive step, does not negate the fundamental flaws that persist within the bill and that raise serious concerns about its conformity with constitutional principles.

The genesis of the GILAB lies in the recommendations of the Presidential High-Level Review Panel on the State Security Agency (SSA), chaired by former minister Sydney Mufamadi, and the State Capture Commission led by Chief Justice Raymond Zondo. Both investigations revealed that the SSA had deviated from its intended purpose, operating as a parallel intelligence structure serving political interests rather than safeguarding national security.

The proposed restructuring involves creating a Domestic Intelligence Agency and a Foreign Intelligence Service, aligning with the panel’s call for a more focused and accountable intelligence framework. However, the removal of the clause mandating vetting for NGOs and religious bodies, which drew significant criticism, has not rectified the bill’s deep-seated issues.

The amended GILAB introduces vague definitions of threats to national security, as outlined in Section 198 of the Constitution. The broad language includes measures that seek to advance equality, promote peace, and advance measures against violence, among others. “National security,” as per Section 198, should “reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want, and to seek a better life.” The broad language reflected in the bill raises concerns about potential abuse, stifling lawful political activity, advocacy, protest, or dissent.

Despite its revision, the bill poses a continued threat to the constitutional rights of various individuals and entities. Business operators, including accountants, lawyers, real estate agents, and dealers in precious metals, as well as their employees, may still be unconstitutionally subjected to security vetting. The bill’s broad scope allows for the vetting of entities considered of “national security interest,” putting NGOs at risk despite the removal of the specific clause targeting them. Similarly, religious institutions may still face potential vetting due to the bill’s vague language, allowing scrutiny of those deemed to be in breach of constitutional principles. The focus on vetting individuals or organisations acting inconsistently with Section 198 of the Constitution raises concerns about the potential targeting of individuals critical of the government, highlighting the bill’s overarching and indiscriminate reach.

The lack of clarity surrounding the consequences of failing to obtain security clearance further compounds the bill’s deficiencies. It remains uncertain how this could impact the operations of affected organisations and individuals, creating another potential threat to constitutional rights. 

Heidi Swart, a research coordinator at Intelwatch, aptly points out in her analysis that security vetting, traditionally reserved for government employees and contractors, is now proposed as a mechanism for criminal investigations, particularly targeting financial crimes. This shift raises questions about the bill’s compliance with democratic practices, as countries like the United States and Britain limit such vetting to individuals handling sensitive state information. The GILAB’s expansive approach, potentially targeting a broad spectrum of individuals and organisations, diverges significantly from these democratic norms.

Furthermore, the absence of effective oversight mechanisms is a glaring flaw in the GILAB. The bill lacks sufficient checks and balances, which may result in the potential abuse of intelligence services. The Institute for Security Studies (ISS) highlights the need for robust civilian oversight to prevent corruption and exploitation, emphasising that the current version of the GILAB fails to provide adequate safeguards.

The FW de Klerk Foundation, in its recently published CRL Report (cultural, religious, and language), identified the vetting of NGOs proposed by the bill as a threat to religious rights in terms of Section 15(1) of the Constitution. The removal of this clause is a positive step, addressing a significant concern outlined in the report. However, the Foundation maintains that many flaws remain within the GILAB.

In conclusion, the GILAB, in its present form, still risks compromising constitutional rights, lacks clarity on consequences, and overlooks the necessity of effective oversight. Contrary to democratic practices globally, the bill falls short of ensuring a balance between national security concerns and the preservation of democratic values.

The FW de Klerk Foundation is still firmly opposed to the GILAB and calls for a comprehensive review that upholds constitutional principles and protects the democratic fabric of South Africa.

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