South Africa’s ‘Spy Bill’ threatens religious freedom and civil liberties – Daniela Ellerbeck

South Africa’s General Intelligence Laws Amendment Bill, 2023, known as the “Spy Bill,” is a looming threat to religious freedom and civil liberties. In this opinion piece by Daniela Ellerbeck, the bill’s troubling provisions are dissected, including its power to dictate who can establish religious organisations and NGOs, and its broad definitions of “national security” and “threats.” The potential for government abuse and unchecked surveillance is alarming. With the bill’s passage on the horizon, Ellerbeck highlights the urgency of public scrutiny and opposition to protect constitutional rights in South Africa. Stay informed and stand up for your freedoms.

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Why the Spy Bill threatens religious freedom

By Daniela Ellerbeck, Legal Advisor to FOR SA

Introduction:

The “Spy Bill” (officially known as the General Intelligence Laws Amendment Bill, 2023, or “GILAB”) is the latest in a series of laws (including the Anti-Money Laundering Act and Anti-Terrorism Act) that you would think would have nothing to do with religious freedom. In fact, all these laws limit this fundamental right, but the “Spy Bill” is arguably the greatest threat to religious freedom that we have yet seen.

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What the Bill proposes:

In its current form, the Bill proposes, amongst other things, to:

  1. Allow South Africa’s intelligence agencies (i.e. “spies”) to conduct security competence tests (for purposes of issuing a security clearance certificate) on anyone who wants to start: a religious organisation (for e.g. a church, shul, mosque etc.) and/or an NGO (which is undefined but would include civil society organisations, like FOR SA). 
  2. Expand the definition of “national security” to not only include threats, but potential threats, opportunities, and even potential opportunities. It is unclear what these undefined, open-ended, vague and subjective concepts mean. Essentially, they could mean almost anything that can be deemed to have an effect on national security. 
  3. Expand the definition of a “threat to national security” to include “subversion and undue influence by hostile interests on Government processes, policies and the sovereignty of the State and its organs”. This is so wide that it could potentially include members of civil society who oppose policies, regulations and draft legislation (bills) the government wants to adopt. It is especially concerning that it does not exclude and protect (as contained elsewhere in the Bill) “lawful political activity, advocacy, protest or dissent”. 

Effect that the proposed law will have on the religious sector: 

  1. The “Spy Bill” will open the door to the State dictating who can start (or continue to operate) a church or an NGO. It therefore has the potential to be abused by the Government to silence critical voices who oppose it and/or who do work for the community independently of the State. 
  2. The requirement of a security clearance certificate before you are allowed to start a religious organisation (or an NGO) is direct interference by the State in the rights of the religious community (and civil society). It is totally unacceptable, in a constitutional democracy, that the State could dictate to the religious community who is allowed to start, for e.g. a church and who is not. 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 type of draconian law is typical of totalitarian states, but should have no place in South Africa’s constitutional democracy.  It is not unlikely that powerful and/or popular religious leaders or religious groups that oppose the Government agenda could find themselves being denied security clearance certificates or subject to greater and more frequent scrutiny than others. 
  3. 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 it has done so) – i.e. civil society, activists, religious organisations, journalists etc. 

Note: It is important to know that any abuses, for e.g. eating snakes or spraying people with insecticide etc. are already illegal under existing law – see article 1, article 2, article 3 and article 4 in FOR SA’s Legal Remedies Series.)

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Status:

The “Spy Bill” has been approved by Cabinet and was submitted to Parliament on Tuesday, 29 August 2023. The Bill will now be referred to a parliamentary committee for consideration and deliberation. This committee will then have to subject the Bill to meaningful public participation.  At this point, the Bill will be opened up for the public’s scrutiny and comments. This will be a critical opportunity to those who object to this proposed law in its current form to have their say and propose changes – or live with the potentially disastrous consequences.

Why even introduce the Bill in the current Parliament?

Of great concern is that the current Parliament’s term expires on 21 May 2024 (whereafter this Parliament will dissolve and cease to exist). The 2024 elections must then take place to elect a new Parliament. 

If a Bill is still making its way through Parliament when Parliament’s term expires, that Bill lapses too. This means that it will have to be introduced afresh in the next Parliament, which re-starts the entire parliamentary process again from the beginning. 

With the expiry of Parliament’s present term being around the corner, and much of the Members of Parliament’s current work revolving around the upcoming elections, it is concerning that a law that poses such drastic interference with constitutional rights and civil liberties has been introduced at such a late stage in the present Parliament. This opens up the possibility of it being rushed through Parliament with undue haste – hence the importance of remaining vigilant and for as many organisations and individuals as possible to respond swiftly to oppose it as soon as it is opened for public participation and comment. 

What happens next?

FOR SA will continue to monitor the “Spy Bill” and will alert the public to any opportunities to comment upon it.

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