Lawmaking behind closed doors a possibility as new intelligence Bill processed

23 Nov 2023

Secret lawmaking is a possibility for the first time in democratic South Africa in the parliamentary ad hoc committee’s three-month dash to process the controversial General Intelligence Laws Amendment Bill.

The chairperson of the Ad Hoc Committee on the General Intelligence Laws Amendment Bill, Jerome Maake, broached the unprecedented possibility of secrecy in lawmaking during a virtual online session on Thursday.

“The information that we might be given by SSA [State Security Agency] ... they might say this [legislative proposal] is not workable and, in explaining why, use classified information... So, for this committee, it would be knowing that no, this clause can’t work without even telling anybody. [The committee] doesn’t need to tell the public about that.”

Maake, who also chairs the Joint Standing Committee on Intelligence (JSCI), which sits behind closed doors, cited the Constitutional Court judgment that those subject to wiretaps must ultimately be told under the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica).

“If SSA has got to explain [Rica] … they will have to come up maybe with classified information that says this is not possible and we will understand ourselves without telling the public.”

That Parliament’s rules permit a committee to meet behind closed doors — on application, for a committee to agree — and that laws ban public discussion of classified information was confirmed by Parliament’s legal adviser, Nathi Mjenxane, who added, “This lawmaking process must be as open as possible.”

Thursday’s committee discussions effectively set up the possibility of the SSA repeatedly requesting — and getting — a meeting closed, ostensibly for sharing classified information as MPs process the General Intelligence Laws Amendment Bill (Gilab).

Read more in Daily Maverick: New intelligence bill is anti-democratic, and a unique mix of malice and stupidity

Whether that information from the SSA — or defence and police intelligence, the intelligence inspector-general or even the bugging judge who authorises wiretaps — really required secret proceedings would not necessarily emerge, precisely because it was shared behind closed doors.

But if a clause or section of Gilab were to be changed in the wake of such a closed committee meeting, then secrecy would have slipped into lawmaking — even if other sessions were held in open sessions.

And that is unprecedented.

Embracing secrecy

On Thursday, the secrecy tolerance in lawmaking seemed accepted across the political spectrum. No one disagreed with how ANC Deputy Chief Whip Doris Dlakude put it, “We will have to agree to the closing [of the meeting] because we cannot have that for public consumption. But if there’s nothing secret or classified ... in those cases, we can have an open meeting.”

The rabbit hole of classification, secrecy and vetting opened as two MPs on the ad hoc committee are not top-security-vetted JSCI members — even though MPs were told intelligence services knew they had to provide open information that the public could access.

The nod to the possibility of secrecy in the Gilab ad hoc committee is in stark contrast to almost 30 years of open, public lawmaking in South Africa’s constitutional democracy.

It also differs from the 2013 intelligence legislative process, which was in a fully open ad hoc committee, chaired by the hawkish securocrat Cecil Burgess, also the JSCI chairperson.

Parliament, according to section 59 of the Constitution, “may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society”.

Crucially, Thursday’s committee discussions signalled changed political and governance attitudes in a government where classification, secrecy and national security are invoked to withhold the disclosure of information. Increasingly, ministerial parliamentary replies withhold requested details on, for example, public order policing resources, police staffing or who has been issued diplomatic passports.

This attitude reaches the highest executive level, the Presidency, whose minister, Khumbudzo Ntshavheni, according to the grapevine, wanted the Gilab processed behind closed doors.

Initially tabled under Joint Rule 159 for information, effectively a heads-up to legislators, it took Ntshavheni more than six months to properly table the intelligence draft law in Parliament.

By early November, the State Law Adviser had finally certified the Bill and after some complications over the ministry properly gazetting it for tabling, Gilab was finally on the parliamentary agenda on 17 November.

In the politics of this Bill, MPs backed down from asserting their connotational legislative authority. The JSCI held off on its decision to proceed with its own committee Bill over ministerial delays, as MPs told Ntshavheni during May’s Budget vote debate.

A can of security worms

What the minister in the Presidency ultimately produced has been described by civil society as malicious and inadequate. The governing ANC’s alliance partner, labour federation Cosatu, in a statement in August, rejected Gilab as a “shocking attempt to undermine the Constitution and its Bill of Rights”.

Part of Cosatu’s concern relates to the vastly extended definition of what is a national security risk — even in the absence of the revised national security strategy that was meant to be released for public engagement in July 2022.

Read more in Daily Maverick: Secrecy is not Security: Long-delayed national strategy must focus on SA people’s needs

In addition to more traditional threats like violence, “foreign hostile acts”, espionage, sabotage, terrorism and terror financing, Gilab now includes as threats “any activity that seeks to harm the advancement and promotion of equality and equitable access to opportunities by all South Africans” and “any activity that seeks to harm the advancement and promotion of peace and harmony and freedom from fear and want for South Africans”.

Also included are threats of “subversion and undue influence by hostile interests on government processes, policies and the sovereignty of the state and its organs”.

Theft and “siphoning of state financial resources” are threats to national security, and the Covid-19 pandemic seems to be the reason for including as national security threats, “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”.

Without a known national security strategy, such provisions open a can of security worms.

Interestingly, gone now seems the express provision to security-vet — it’s now security competence testing — non-governmental and religious organisations that was in the draft Bill released after Cabinet approval in May. A public outcry erupted over this, particularly as similar provisions were removed from the anti-money laundering and terror financing law passed in the ultimately unsuccessful effort to stave off greylisting by the global watchdog, the Financial Action Task Force.

But as Gilab says, intelligence services were enabled “to conduct security assessments and investigations on institutions that may be used illegally for terror financing and money laundering” — and that could mean any NGO, church, religious organisation or volunteer group with connections across South Africa’s borders may yet be affected.

Although the draft law separates domestic and foreign intelligence divisions, Gilab tackles the bare minimum recommended to clean up the politicking, financial malfeasance and corruption in the 2018 High-Level Review Panel Report into the SSA and reiterated by the Sandy Afrika panel into the July 2021 violence.

At Parliament, the next step in dealing with the General Intelligence Laws Amendment Bill is a briefing from the SSA and the State Law Adviser on Wednesday. The ad hoc committee has a 1 March 2024 deadline. DM

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Embracing secrecy

A can of security worms