FOR SA - The latest version of the Spy Bill still threatens religious freedom - 06 December 2023

Introduction

The General Intelligence Laws Amendment Bill [B40-2023] (“the Bill”) has started making its way through Parliament.

Parliament’s first house, the National Assembly has created a special committee to deal with the Bill: the Ad Hoc Committee on General Intelligence Laws Amendment Bill. The Committee consists of 12 MPs in total (eight ANC, two DA, one Al Jama-ah and one COPE).

The Bill that was handed over to the Committee has undergone significant changes from the version that was approved by Cabinet. The version that was approved by Cabinet had explicitly mentioned and targetted “Non-Governmental Organizations, Churches or Religious Institutions”.

Second version even more concerning

In its current form, the Bill proposes, amongst other things, to allow the South African Intelligence Agency (i.e. “spies”) to conduct security competence tests (for purposes of issuing a security clearance certificate ) on any “person or institution of national security interest”.

According to the Bill, this would be a person or institution whose actions the spies see as being inconsistent with section 198 of the Constitution, including (i.e. not limited to) anyone whose activities are seen as a threat to national security.

Inconsistent with s198:

Importantly, actions that would be seen as inconsistent with section 198 of the Constitution, would be any actions that are seen as affecting South African’s resolve to:

1.           live as equals;

2.           live in peace and harmony;

3.           be free from fear and want; and

4.           seek a better life.

The result is that this definition is so wide that anything could potentially be seen as affecting South African’s resolve to seek a better life. The unintended consequences of such an overbroad definition could potentially be that religious organisations and their employees (as they affect, and indeed reflect, South African’s resolve to seek a better life) persons or institutions of national security interest.

Threat to national security:

The Bill also expands the definition of what would be seen as being a “threat to national security”, so that it includes “subversion and undue influence by hostile interests on government processes, policies and the sovereignty of the State and its organs”. 

Critically, when it comes to what will be seen as “subversion and undue influence by hostile interests on government processes, policies and the sovereignty of the State and its organs”, the Bill chooses not exclude and protect “lawful political activity, advocacy, protest or dissent” (something it expressly does elsewhere with regard to other provisions). 

The result is that this definition is so wide that it could potentially include citizens and/or institutions who oppose policies, regulations and draft legislation (bills) the government wants to adopt to be seen as persons or institutions of national security interest.

Other concerns:

The Bill will also widen the definition of “national security intelligence” to not only include threats, but potential threats, opportunities, and even potential opportunities. These are vague and overbroad definitions and/or concepts. As a result, they are open to abuse by the spies.

What this means for the religious sector:

The Bill continues to open the door for religious institutions (e.g. a church, mosque, shul etc.) and those working for them, to be seen by the Agency  (i.e. “spies”) as persons or institutions of national security interest and to be subjected to a vetting investigation to determine their security competence – i.e. if they qualify for a security clearance certificate .

The unintended consequence of a religious institution failing to pass a security clearance test (for which no reasons have to be given ) and obtain a security clearance certificate will be that it would have to shut its doors.

The Bill, therefore, has the potential to be abused by a future government to threaten or even silence critical voices who oppose it.

Should religious institutions not be exempted from having to obtain a security clearance certificate, this would constitute direct interference by the State in the rights of the religious community. This opens the possibility of the State asking questions about doctrine and eventually finding itself deciding which doctrines are acceptable and allowed and which are not.

This Bill will also result in the State being able to spy on anyone it deems to be a “threat to national security” (without ever telling the people spied upon it has done so) – i.e. civil society, activists, religious organisations, journalists and even private businesses etc.

Conclusion:

FOR SA will continue to monitor the progress of the Bill and will alert the public when Parliament opens it for public comment.