New Spy Bill threatens Democracy, may even Shut Church Doors

Background:

The controversial General Intelligence Laws Amendment Bill, 2023 (or “Spy Bill”) was introduced in Parliament on 17 November 2023. The first version of the Bill was so glaringly unconstitutional that the Parliamentary law advisors produced a second, apparently improved, version.

The revised version was opened for public comment on 17 December 2023 – after many, if not most, South Africans were enjoying the December/January holiday season. This is not exactly a time when citizens are poised to scrutinize and comment on complex bills that drastically overhaul South Africa’s intelligence landscape.

Insufficient opportunity for meaningful public participation:

The initial deadline for comment was 31 January 2024 – a mere two weeks after most South Africans return to work. FOR SA wrote to Parliament immediately to the Ad Hoc Committee on the General Intelligence Laws Amendment Bill, which is tasked with processing the Bill. We emphasised Parliament’s constitutional obligation to facilitate meaningful public participation, stressing that the January deadline was simply too short.

To their credit, the Committee extended the deadline by two weeks to Wednesday, 15 February 2024. (A longer, four-week extension would have been better/preferable.)  However, they stated that no further extension would be granted.

Potential impact on freedom of religion:

The Spy Bill's overly broad and open-ended definitions will enable the South African Intelligence Agency (i.e. spies) to subject South Africans – including religious institutions, their leaders and members – to invasive, secret vetting investigations. The outcome of these “security competence tests” will determine whether these institutions and individuals are provided with security clearance certificates, or not.

The consequences of failing to obtain this certificate are unclear. Ultimately, it could lead to forcibly shutting the doors of those religious institutions that are refused security clearance. This is tantamount to direct state interference with religion: the State deciding who can and who cannot have a church, a mosque, a synagogue, a temple, etc.

How can a religious institution be identified as a threat to national security (the basis for refusing security clearance)? The devil is in the details. The definitions of “national security”, “threat to national security”, and “person or institution of national security interest” are too wide. So wide in fact, that many religious institutions and leaders who oppose government policies through “lawful political activity, advocacy, protest or dissent” may find themselves caught in the Spy Bill’s dragnet.

While protecting the Republic's national security is an important and lawful objective, the current version of the Spy Bill has the potential to be abused to silence critical voices or those who refuse to bend to the will of those in power. This means popular and powerful religious leaders and groups who do not toe the line could find themselves being denied security clearance certificates or subject to greater and more frequent scrutiny than others.

Death of privacy and birth of new surveillance state:

Many are concerned that the Spy Bill signals the death of any meaningful right to privacy. In essence, it legalises mass surveillance – ushering in a return to the pre-1994 surveillance state. The proposed investigations are invasive, including the scrutinising of financial records and private communications. There is also a glaring and alarming lack of proper oversight mechanisms to prevent the abuse of power or options for legal recourse when abuse does occur.

Despite the presumed good intentions of its drafters, the Spy Bill is the type of draconian law typical of totalitarian states. It will fundamentally change the relationship between the State and its citizens by granting the State broad and unaccountable power to monitor and examine almost any area of civil, business, or personal life. Worse, it will give the State the power to mislabel innocent citizens engaged in lawful criticism and protests as a threat to national security.

Does this seem a bit farfetched? Consider that recently in the United States, an established democracy, ordinary citizens – concerned parents – were labelled “domestic terrorists” for objecting to liberal sexual and ideological content being taught to their children in school.

Call to action to oppose the draconian Spy Bill:

The bottom line is that the proposals contained in the current version of the Spy Bill have no place in post-Apartheid South Africa’s constitutional democracy. The Spy Bill must be amended and purged of any unreasonable and unjustifiable erosion (i.e. unnecessary impairment) of citizens’ fundamental rights. It must be rid of any loopholes that can open the door to abuse of power. It must be bolstered with proper oversight and recourse mechanisms as necessary checks and balances.

For this reason, FOR SA is urging all South Africans to comment on the Spy Bill before the deadline of Thursday, 15 February 2024.

FOR SA has made commenting quick and easy. Go to www.forsa.org.za and select your desired option on the STOP THE SPY BILL! banner. Individuals can submit their comments through the DearSA platform and organisations can download the pre-prepared organisational template.

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