A FAMOUS GROUSE

WIDESPREAD derision, it’s noted, at government’s garbled plans to establish separate domestic and foreign intelligence services to identify threats to “national security”. Homegrown versions of Britain’s MI5 and MI6 were presumably envisaged. Draft legislation suggests instead the bastard offspring of China’s Ministry of State Security and the Stasi.

In short, proposals in the General Intelligence Laws Amendment Bill will allow Pretoria to spy on any individual or organisation involved in any form of lawful advocacy, protest, dissent or activity that may be regarded as vaguely “political”. 

In addition, the minister responsible for state security will be allowed to introduce any form of “information security” regulation deemed fit for purpose and permit mass communications surveillance. ___STEADY_PAYWALL___

The draft bill moreover states that citizens wishing to start a non-governmental organisation will be subjected to a “security competence test”. This is especially ludicrous as it appears that no competency of any description was required of the authors of this nonsense.

While it has yet to come before Parliament, the bill, known as GILAB, was approved by Cyril Ramaphosa and his Cabinet in May. It was intended to give effect to the recommendations of both the Zondo Commission and a review panel on the State Security Agency chaired by Sydney Mufamadi, who was security minister from 1994 to 1999. 

Both were scathing of the SSA, which they found had been transformed into a parallel spook organisation to serve and protect only the interests of then president Jacob Zuma and his coterie of grubby looters and rent-seeking supporters.

This travesty, readers will recall, had unfolded during the stewardship of David Mahlobo, the security minister from 2014 to 2017. This was a period in which the list of Accused Number One’s enemies, both real and imaginary, had mushroomed alarmingly and thus dramatically increased the larger-than-life Mahlobo’s workload. 

Despite this, our man did find time to hang out with a self-confessed rhino horn smuggler and enter into business arrangements of a probing nature in the Nelspruit massage parlour run by the smuggler’s wife. Such was the savage pressure of the security portfolio in the Butternut era that, to this day, the regulars at the Slaughtered Lamb (“Finest Ales & Pies”) remain somewhat awed by such behaviour.

But back to the present, and the mess that is GILAB. Far from acting on the recommendations of the Zondo commission and the Mufamadi review panel, government has instead bolted in the other direction.  

Writing in Daily Maverick, the constitutional expert Pierre de Vos argues that one of the bill’s main aims is to “remove many of the restrictions that currently limit the ability of the Intelligence Service to lawfully spy on people and organisations inside South Africa”. 

He notes that this, of course, has not stopped members of the Intelligence Service from unlawfully spying on South Africans and their organisations in the past, or from using unlawful methods to do so.

“When I first heard that the bill would require individuals heading NGOs to obtain security clearance,” De Vos says, “I assumed that this was a case of Hanlon’s Razor, the rule of thumb that one should never attribute to malice that which is adequately explained by stupidity. After studying the bill, I strongly suspect that the document is the product of a happy marriage between the two.”

Surprisingly, the trade union federation Cosatu, one of the ANC’s alliance partners, has also expressed its opposition to the bill and has called on government to withdraw it. In a statement released by acting spokesman and parliamentary coordinator Matthews Parks, the federation describes GILAB as a “shocking attempt to undermine the Constitution and its Bill of Rights”.

While Parks concedes some of the draft legislation’s provisions are administrative, such as the need to separate domestic and foreign intelligence gathering, he maintains “the bill, as a whole, is contaminated by its shameless attempts to bizarrely introduce a creeping security state through the back door”.

There are two “fundamentally unconstitutional provisions” that must be removed entirely from GILAB, he argues.

One of these is the requirement that state security services must vet anyone wishing to establish an NGO, church or religious institution. 

“This,” according to Parks, “is a naked power grab by bored state security bureaucrats and needs to be rejected with the contempt it deserves. The Constitution guarantees the right of all South Africans the rights of political association, to establish trade unions, freedom of religion, etc.

“There is no provision in the Constitution that says these are subject to the approval of state security. NGOs include trade unions, political parties, civics, neighbourhood watches, among others. They are called non-governmental organisations precisely because they are not subject to governmental approval. This is constitutional law 101!”

The other, perhaps more distressing “constitutional delinquency” is the ludicrously cack-handed attempt to broaden the definition of threats to national security to include anything that may threaten “equality and equitable access to opportunities” and, most bizarrely, “measures and activities that seek to advance and promote peace and harmony and freedom from fear and want”.

“These new definitions are so vague and ill-defined,” Parks argues. “They will provide a blank cheque to the security services to classify all manner of issues as a threat to national security and place millions of South Africans in danger of being accused of being threats to national security and hence risk prosecution.”

He is not being overly dramatic. Consider these actions that may, in terms of the draft bill, “potentially case damage, harm or loss to the national security”: 

“(a) measures that seek to advance and promote equality and equitable access to opportunities as provided for in Section 9 of the Constitution;

“(b) measures and activities that seek to advance and promote peace and harmony and freedom from fear and want for South Africans.” 

This is utterly irrational and any attempt to prove otherwise will be impossible and may also result in irreparable brain damage. Far healthier then to dismiss it without a second thought. It’s stupidity on steroids. 

The definitions that follow, from (c) to (j), are not dissimilar to the jargon-stuffed malevolence bandied about by PW Botha’s securocrats. Same paranoid tune, just a different fiddler scraping away in the usual demented fashion. (See footnote.) 

It is the last definition however that is the most interesting. It reads:

“(k) acts of theft or syphoning of state financial resources and its related corrupt activities.” 

GILAB may have been drafted by those who wish “the intelligence service could be put to use to keep the governing party in power”, as De Vos puts it. But, as (k) makes clear, this draft legislation then also inadvertently classifies the ANC as a threat to national security. 

On the whole, though, it is not surprising that the ruling party considers lawful political behaviour to be potentially hostile activity. The activities that bother them could take the form of rallies and marches. They could even be church services, theatre performances, music festivals or art exhibitions. 

They may well successfully challenge or undermine the so-called “shared values” or “national interests” that Pretoria is forever banging on about in its absurd quest for North Korean-styled social cohesion. But so what? That is surely the aim and function of dissent and protest.

The ANC’s deep-rooted disregard for the fundamental principles of constitutional democracy is now plain for all to see. They are the enemy. 

Footnote: 

The full list of actions that, according to GILAB, may pose a threat to national security reads as follows:

“(a) measures that seek to advance and promote equality and equitable access to opportunities as provided for in Section 9 of the Constitution;

“(b) measures and activities that seek to advance and promote peace and harmony and freedom from fear and want for South Africans;

“(c) use of force or violence against the people of the Republic or the territorial integrity of the Republic;

“(d) Foreign hostile acts directed at undermining the constitutional order of the Republic;

“(e) terrorism or terrorist-related activities;

“(f) subversion and undue influence by hostile interests on government processes, policies and the sovereignty of the state and its organs;

“(g) espionage including acts of unauthorised access, disclosure and exposure of a state security matter, exposure of economic, scientific or technological secrets vital to the Republic;

“(h) serious acts of violence, intimidation and sabotage directed at harming security of the Republic, its people and national critical infrastructure as well as acts directed at overthrowing the constitutional order of the Republic;

“(i) acts directed at undermining the capacity of the Republic to respond to the use of, or the threat of the use of force and carrying out of its constitutional responsibilities and any legal responsibilities to a foreign country and international organisation in relation to any of the matters referred to in this definition, whether directed from, or committed within, the Republic or not; but does not include lawful political activity, advocacy, protest or dissent;

“(j) threats or potential threats of calamity or any harmful or contagious episode or pandemic which occurs naturally or artificially induced or declared in law as a national state of disaster; and

“(k) acts of theft or syphoning of state financial resources and its related corrupt activities.”