Cabinet’s recent approval of the 2023 General Intelligence Laws Amendment Bill (Gilab) is a troubling development that South Africans cannot afford to ignore. The bill introduces provisions that could have a chilling effect on civil society organisations instrumental in shaping our democratic landscape.
The proposed amendment would subject individuals seeking to “establish and operate” NGOs and religious institutions to compulsory vetting by state security forces to determine if they pose a threat to national security. Such a provision is part of a global crackdown on the rights and freedoms of civil society actors, hidden behind the shield of national security legislation.
As outlined in the bill, “vetting” will grant the State Security Agency (SSA) access to personal information that goes far beyond what is necessary to determine a person's security clearance. This includes scrutinising financial records, personal relationships, criminal history and any other information deemed “relevant” to security clearance determination. People subjected to vetting may also be compelled to undergo polygraph tests, and their communications could legally be intercepted.
This level of scrutiny against NGOs is an unconstitutional infringement of free speech and association. As non-governmental and non-business entities, NGOs are more akin to private individuals, so should not be subject to any form of scrutiny without permission from a judge, as outlined in the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002.
NGOs in South Africa fall under the purview of existing regulations and institutions, depending on their mandate and incorporation. This means NGOs already undergo a level of vetting, making additional scrutiny unnecessary and unjustifiable.
Civil society organisations are a vital cog in a healthy democracy. They hold elected representatives and governments to account for their delivery records; they represent and speak up for marginalised social groups; and they advocate for and defend our constitutional rights against government neglect and state overreach.
So what could be the motivations behind such a cynical intrusion? It is impossible not to draw a connection between this bill and the co-ordinated smearing of humanitarian and civil rights NGOs after the fire in Johannesburg last week, in which 77 people died and which deepened the displacement already suffered by hundreds more.
Between the odious city government officials and the xenophobic social media conspiracy theorists, it did not take long for civil society organisations, which have litigated against the illegal and forced removal of people who lack access to alternative housing, to be accused of responsibility for the tragedy. Such a narrative is further grist to the paranoid, anti-civil society mill.
Where is the evidence that a crackdown on NGOs would improve national security?
We know from the declassified “boast report” from the Zondo commission’s final report into state capture that the SSA has already engaged in the unlawful surveillance — or what it calls “active monitoring” — of civil society groups and student movements including Right2Know, the Council for the Advancement of the South African Constitution, Greenpeace and FeesMustFall. The report even bragged about agents infiltrating organisations by posing as activists.
What is also concerning about the Gilab is its parallels to state repression and the closing of democratic space globally. Bringing these regulations to South Africa places us in the company of autocratic states that view NGOs as potential agents of enemy states and subject them to stringent controls. Such a move would grant our government's security forces power over those seeking to establish or operate NGOs or religious organisations.
Where is the evidence that a crackdown on NGOs would improve national security?
According to the International Centre for Not-for-Profit Law — the global organisation working to improve the legal environment for civil society — 91 countries have proposed or enacted more than 260 legal measures affecting civil society since 2016. Of these, 72% have been restrictive.
Civil society organisations have played a pivotal role in opposing repression and promoting democracy and human rights in South Africa, stepping in where the government has failed. This bill is a bellwether for the unlawful, state-sanctioned surveillance of organisations exercising their right to assembly and freedom of expression.
The last time such a legal overreach was attempted in South Africa — in the form of the Protection of State Information Bill or “Secrecy Bill” — it was thanks to Right2Know and other organisations that the legislation was thwarted.
The sort of intervention championed by Right2Know might not be possible under Gilab. It is not far-fetched to see this amendment as an attempt to prevent civil society from demanding government accountability or to curtail the voices essential in upholding our democratic ideals.
Between the Zondo commission report and the horrors of the insurrection in July 2021, an overhaul of our compromised and politicised national security instruments is necessary. It might also include the need for legislative review and amendments, but we should never allow the dictates of national security to conceal more malicious intents.
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