SOUTH AFRICA’S NEW INTELLIGENCE BILL IS MEANT TO STEM ABUSES

Sun 14 January 2024:

When South Africa became a constitutional democracy in 1994, it replaced its apartheid-era intelligence apparatus with a new one aimed at serving the country’s new democratic dispensation. However, the regime of former president Jacob Zuma, 2009-2018, deviated from this path. It abused the intelligence services to serve his political and allegdly corrupt ends. Now the country is taking steps to remedy the situation.

In November 2023, the presidency published the General Intelligence Laws Amendment Bill. It proposes overhauling the civilian intelligence agency, the State Security Agency, to address the abuses.

The bill is extremely broad in scope. It intends to amend 12 laws – including the main intelligence laws of the democratic era.

Parliament has set itself a 1 March deadline to complete work on the bill before it dissolves for the national election expected between May and August.

In my view, some of the proposals in the bill risk replacing the old abuses with new ones. The bill seeks to broaden intelligence powers drastically but fails to address longstanding weaknesses in their oversight.

Ending abuse

The bill is meant to respond to major criticisms of the State Security Agency during Zuma’s presidency. The critics include the High Level Review Panel and the Commission of Inquiry into State Capture.

The main criticism of the panel appointed by Zuma’s successor Cyril Ramaphosa in 2018 was that under Zuma, the executive repurposed the agency to keep him in power, along with his supporters and others dependent on his patronage. In 2009, he merged the erstwhile domestic intelligence agency, the National Intelligence Agency, and the foreign agency, the South African Secret Service, by presidential proclamation, to centralise intelligence. This made it easier for his regime to control intelligence to achieve nefarious ends. The state capture commission made similar findings.

The most important proposal in the bill is to abolish the State Security Agency. It is to be replaced by two separate agencies: one for foreign intelligence, and the other for domestic. The proposed new South African Intelligence Service (foreign) and the South African Intelligence Agency (domestic) will have separate mandates.

Abolishing the State Security Agency would be an important step towards accountability, as set out in the 1994 White Paper on Intelligence.

The proposed names of the envisioned new agencies have symbolic importance. They suggest a shift away from a focus on state security, or protection of those in positions of power. Instead, it puts the focus back on human security. This is the protection of broader society, as required by the 1994 White Paper.

The dangers of over-broad definitions

However, the new mandates given to the two new agencies, and the definitions they rely on, are so broad that abuse of their powerful spying capabilities is almost a foregone conclusion.

The bill says the new agencies will be responsible for collecting and analysing intelligence relating to threats or potential threats to national security in accordance with the constitution.

The bill defines national security as

the capabilities, measures and activities of the state to pursue or advance any threat, any potential threat, any opportunity, any potential opportunity or the security of the Republic and its people …

This definition is extremely expansive. It allows the intelligence services to undertake any activity that could advance South Africa’s interests. This is regardless of whether there are actual national security threats.

This creates the potential for overlap with the mandates of other state entities. However, unlike these, the intelligence agencies will be able to work secretly, using their extremely invasive surveillance capabilities.

Such capabilities should only be used in exceptional circumstances when the country is under legitimate threat. To normalise their use in everyday government functions threatens democracy.

Intelligence overreach has happened elsewhere. Governments are increasingly requiring intelligence agencies to ensure that policymakers enjoy decision advantages in a range of areas. These include bolstering trade advantages over other countries.

For example, whistleblower Edward Snowden’s leaks of classified US and UK intelligence documents showed how the countries misused broad interpretations of national security to engage in industrial espionage.

The UK government used its powerful signals intelligence capability to spy on African politicians, diplomats and business people during trade negotiations. These abuses mean intelligence mandates should be narrowed and state intelligence power should be reduced.

Human security definition of national security

The State Security Agency used its presentation to parliament on the bill to seek broad mandates. Its presentation says it seeks to give effect to the national security principles in section 198 of the constitution. The section states that:

National security must 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.

This principle is actually based on the human security definition of national security. The United Nations General Assembly calls this freedom from fear and freedom from want.

In its broadest sense, human security protects individuals from a wide range of threats and addresses their underlying drivers. These include poverty, underdevelopment and deprivation. State security, on the other hand, is about protecting the state from threats.

If social issues are securitised – or treated as national security issues requiring intervention by the state’s security services – it becomes difficult to distinguish the work of these agencies from the social welfare arms of the state.

What needs to happen

International relations scholar Neil MacFarlane and political scientist Yuen Foong Khong suggested in 2006 that it was possible to address this conundrum by maintaining the focus on broader society as the entity that needs protection, rather than the state.

Legislators need to take a similar approach when debating the bill. They should narrow the focus of the envisaged two new agencies to domestic and foreign threats of organised violence against society, such as genocide or terrorism. By doing so, they would still be recognising the best of what human security has to offer as an intelligence doctrine, while providing a much more appropriate focus for civilian intelligence.

The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of Independent Press.

Author:

Jane Duncan

Professor of Digital Society, University of Glasgow

I am a Professor of Digital Society and hold a British Academy Global Professorship. I am based at the University of Glasgow for the duration of the Professorship, which focusses on strengthening public oversight of intelligence-driven surveillance. Before that, I was a full Professor in the Department of Communication and Media at the University of Johannesburg (UJ). Between 2018 and 2020, I was Head of Department of Journalism, Film and Television at UJ. I hold a PhD from the Wits School of the Arts, University of the Witwatersrand, as well as a MA, Honours and BA in Fine Arts from the same university. Before joining UJ, I held the Chair in Media and Information Society in the School of Journalism and Media Studies at the University Currently Known as Rhodes. I was also co-Director of the Highway Africa Centre, devoted to promoting digital media in Africa.

I come from a civil society background, having worked for the Freedom of Expression Institute (FXI) for 15 years and served as its Executive Director for eight of those years. The FXI dealt with some of the earliest post-apartheid cases of freedom of expression violations, including violations of the right to protest and state harassment of activists, and I oversaw its successful application for law clinic status.

Before joining the FXI, I worked in the community art centre movement, firstly at the African Institute for Art at the Funda Centre in Soweto, and then at the Afrika Cultural Centre in Newtown.

I was a member of the Right 2 Know Campaign (R2K), and involved in its work on secrecy and securitisation, the right to protest and media freedom. I represented Universities South Africa at public hearings held by Parliament’s National Council of Provinces, on the implications of the Protection of State Information Bill (or the ‘Secrecy Bill’) for academic freedom. Together with Profs Julie Reid and Viola Milton, I was a co-founder of the Media Policy and Democracy Project (MPDP), a joint initiative of UJ and the Department of Communication Science at the University of South Africa. The MPDP was established in 2012 to encourage participatory media and communications policy. In its eleven years of existence, it conducted research that has impacted on policy discussions around press transformation and accountability; media diversity; ICT policy and communications surveillance and privacy.

My research interests have been shaped by my work in civil society, and my research work is both informed by and informs activist work. My interest is in possibly the most neglected form of intelligence oversight of all, namely public oversight and how the public can contribute to holding these most secretive areas of the state to account. Through my research, writings and civil society activism, I have examined how national security practices are changing state/ society relations and impacting on spaces for political expression, especially dissent and the right to protest. I have produced four single authored books on these themes. I am a contributor to publications such as the Daily Maverick, The Conversation, OpenDemocracy, the Mail & Guardian and About.Intel, a blog on intelligence oversight, set up by the German think-tank Stiftung Neue Verantwortung.

Since 2014, I fundraised for, managed and undertaken research on a project on communication surveillance in South Africa. Based on this work, I was appointed to a Presidential Review Panel on the State Security Agency (SSA), established to investigate the mandate, functioning and organisational integrity of the SSA. The panel’s work is widely recognised as having provided a roadmap for intelligence transformation in South Africa and has been used as a basis for hearings held by a Commission of Enquiry into State Capture (the Zondo Commission, named after its chair).