17 February 2012

“Spy bill” a major threat to privacy and transparency in South Africa

The General Intelligence Laws Amendment Bill ("spy bill") that was introduced in the National Assembly on 29 December 2011 represents a step away from transparent and accountable governance in South Africa and is indicative of the growing trend toward secrecy in this country.

The bill represents a return to apartheid-era secrecy. The government will be able to watch over the public behind closed doors. This is a violation of an individual's constitutional right to privacy.

The bill would allow the government to read the emails, facebook posts, and tweets of South African citizens, or the public at large without the typical requirement that a warrant be issued by the court, which is usually only given where there is suspicion that a person has been involved in a crime.

One of the major changes that the bill would bring about is the establishment of a single powerful intelligence authority. This body would bring together the current National Intelligence Agency, which focuses on foreign intelligence and the South African Secret Service, whose mandate deals exclusively with domestic intelligence. The National Communications Centre, which monitors the transmission of electronic communications, would also be brought into the new intelligence authority.

Opposition MP, David Maynier, suggested that the combination of intelligence services is a return to the intelligence strategy employed by the apartheid government. The intelligence agency during that period, the Bureau of State Security, watched over all aspects of South African's lives.

Some of the key problems with the spy bill stem from the refusal to give full consideration to the 2008 Report of the Matthews Commission, which was established by former Minister of State Security, Ronnie Kasrils, to analyze the content of South Africa's current intelligence laws. The report provided many recommendations to improve South Africa's intelligence laws and identified outstanding problems.

The office of current intelligence minister, Siyabonga Cwele, indicated that the report had been taken into consideration in drafting the spy bill, and that it provides a "sound legal footing for government's efforts to develop a new intelligence dispensation." However, one member of the committee responsible for the bill, and contributor to the Matthews Commission's report, suggests that the committee refused to consider the report.

One of the only areas where the bill reflects the recommendations of the Matthews Commission is in its adoption of the definition of "national security" that was proposed by the Matthews Commission. However, that definition is too broad, and could result in information being classified even where it does not impact the state's ability to protect its citizens or territory. The definition of national security is not exhaustive and broad categories of kinds of information that may be classified by the state are named. As a result, the state is empowered to use sweeping "counter-intelligence" measures to protect any information they declare as being a matter of national security, even where no connection between the information and state security exists.

This bill is a power grab by the current government that enables them to operate in secret and to monitor the private lives of South Africans. It represents a return to the apartheid era of intelligence services and goes against the letter and spirit of the South African Constitution.

For more information on this story, please contact the FOIP team at SAHA.