GILAB: A little less Big Brother but still too authoritarian

OUTA says that the National Assembly’s adoption of the intelligence laws bill underlines the need for an active civil society to monitor and challenge the restriction of citizen rights.

South Africa needs more than ever an active civil society that can hold government to account. Any measures by the state to interfere with or hamper civil activism is a recipe for authoritarian conduct that will stifle our work.

On 26 March 2024, Parliament’s National Assembly adopted the new General Intelligence Laws Amendment Bill (GILAB). OUTA regards this third iteration of the Bill as an improvement on the first two versions, and views the omission of the draconian provisions as a victory for civil society.

Although the current version of GILAB is a major improvement from previous versions and a step in the right direction, there are still some concerns from civil society organisations.

Those concerns include the failure by GILAB to give sufficient powers to the Auditor-General, the Inspector-General of Intelligence, and Parliament’s Joint Standing Committee on Intelligence to oversee the Secret Services expenditure (R4.865 billion in 2024/25).

Furthermore, although the Inspector-General of Intelligence can appoint their own staff and determine the organisational structure, they still cannot make legally binding decisions or recommendations, which means that their investigations into malfeasance are unlikely to lead to any form of accountability.

In addition, as captured in the joint media release from the Campaign for Free Expression and Intelwatch, security vetting of those with access to critical infrastructure is still allowed. This may for example be extended to SABC journalists, leaving them vulnerable and threatening their journalistic independence.

Some of the improvements are:

• The removal of the security vetting provision in some instances. The previous bill had a broad definition of “person or institution of national security interest” which granted excessive authority to state intelligence agencies to conduct mandatory security vetting. OUTA was concerned about this lack of clarity regarding the criteria for identification and the potential for abuse of power.
• The previous versions of GILAB proposed to expand the mass interception surveillance powers of state security agencies through the National Communications Centre (NCC) without adequate safeguards for privacy and freedom of expression. The oversight mechanisms outlined fell short of constitutional standards and risk granting unchecked surveillance powers to the government.
• The current version of GILAB requires intelligence services to seek approval from a judge to conduct mass interception and that judge must be appointed by the President in consultation with the Chief Justice.
• GILAB now includes more stringent oversight over data collected by the NCC and clearly recognises the safeguards of the Protection of Personal Information Act.
• Although some of the problematic broad definitions such as “national security” still remain in GILAB, it is commendable that the ill-defined term “potential opportunity” which was contained in the older versions of GILAB has been removed.

GILAB will now proceed to National Council of Provinces for further consideration, although it is noted that, since it is a Section 75 bill (on ordinary bill not affecting provinces), NCOP need not concur with the bill for it to be passed.

OUTA together with other civil society organisations will continue to monitor the progress of GILAB.