The General Intelligence Laws Amendment Bill is unconstitutional

12 October 2023

The Bill of Rights, which is Chapter Two of the Constitution of SA, our supreme law, guarantees the rights of privacy, freedom of association, religion and free speech to all South Africans. The state is constitutionally obliged to respect, protect, promote, and fulfil these rights for everyone. Any new law that is not consistent with these principles is regarded, in terms of section 2 of the Constitution, as invalid.

The General Intelligence Laws Amendment Bill threatens or infringes all the rights mentioned above and is accordingly unconstitutional. It should be withdrawn or amended radically to render it constitutionally compliant. The mischief which the Bill seeks to address can be dealt with in ways that are consistent with the Bill of Rights. It is not reasonable or justifiable in our open and democratic society to seek to limit the hard-won rights of the people in the manner contemplated in the Bill.

The Bill has a chilling effect on the lawful activities of those willing to participate actively as private citizens in our constitutional democracy. It is unconscionable that state security operatives should be given the power to “vet” those who work for civil society organisations and Non-Governmental Organisations. The Zondo Commission found that state security agents ran wild during state capture and they should not be encouraged to do so again. The proposed vetting could lead to unintended consequences for the robustness of the multi-party nature of democracy in South Africa.

The greylisting of SA, which the Bill purports to address, has occurred because of the lack of well-functioning anti-corruption machinery in SA, not because of the activities of the faith-based sector, civil society organisations and NGOs. Reform of the criminal justice administration is both long overdue and preferable to the introduction of a Bill that is inconsistent with the rights to association, privacy, religion and free speech.

Cabinet is urged to rethink the efficacy of the Bill and pay greater attention to the recommendations of the Mufamadi high level panel when doing so.

By Paul Hoffman SC, Director of Accountability Now