Calls for Enhanced Regulation as South Africa Tackles Historical Intelligence Abuses

In the wake of historical intelligence abuses facilitated by weaknesses in South African security laws, current efforts have intensified to apply stringent oversight over the nation's intelligence agencies. Rooted in a disturbing legacy of state surveillance misappropriated for political gain, recent developments suggest a pivot toward a future where such practices are overtly reined in.

From 2009 to 2018, under the former president Jacob Zuma's leadership, the State Security Agency's (SSA) engagement in inappropriate covert operations made headlines, raising concerns about the deleterious impact on legitimate political activities and personal privacy. Diverging from this trajectory, President Cyril Ramaphosa championed reforms, including a high-level panel review in 2018 to diagnose the SSA's shortcomings and propose critical reforms.

Parliament’s Joint Standing Committee on Intelligence's 2023/4 report signals a positive trend, showcasing the committee's commitment to demanding adherence to existing legislative frameworks. A noted decline in requests for communication interception accompanies these strides, reflecting the impact of a fortified Regulation of Interception of Communication and Provision of Communication Related Information Act (Rica).

However, with the regulation of communication surveillance seemingly succeeding, there’s a veiled risk: other covert powers, not as strictly regulated, may persist unscrupulously. I share insights from over a decade of intelligence and surveillance research and experience on the 2018 review panel, voicing that the committee's report has laid bare significant vulnerabilities.

The cornerstone of these fragilities lies within the vague ambit of many covert intrusive capabilities. While communication surveillance, search premises, and property seizures have defined parameters, others remain ambiguously unfettered, raising the specter of recycled abuses endemic to the Zuma era. Documentation from both the high-level review panel and the State Capture Commission has provided a glimpse into how the SSA's special operations division was implicated in financial misconducts, amongst different transgressions.

Tracing back to 2008, the Mathews Commission's inquiry into the once-National Intelligence Agency emphasized the urgency for legislation to predicate the employment of intrusive methods upon the existence of reasonable suspicion for serious criminal activity. It's a clarion call for restraint and necessity before resorting to covert powers.

As South Africa navigates this precarious landscape, the General Intelligence Laws Amendment Bill, 2023 is a beacon of hope, yet its provisions may fall short. The forthcoming parliamentary intelligence committee will grapple with this challenge as they strive for substantial legislative changes – the pressing need to concrete stringent conditions akin to those of Rica for all covert powers.

The prior intelligence committee’s insights also expose another pitfall: the auditor-general's lack in full access to intelligence agencies' covert actions, leading to habitual qualified audits. This challenge, both financial and ideological in nature, necessitates empowerment on the auditor-general's part – under strict intelligence oversight – to facilitate thorough audits without compromising operational secrecy.