Assessing South Africa’s cyber surveillance legislation against democratic principles

Abstract

Intelligence services play a vital role to predict, detect, and analyse threats to a state's national security. In order to properly perform this function, intelligence services use various surveillance methods, including cyber surveillance, to gather intelligence on a potential threat. However, the very nature of surveillance dictates that it be done in secrecy, which makes proper oversight an unenviable task, and poses a significant threat to the democratic principles upon which South Africa has been rebuilt. South Africa's intelligence services have a long history of abuse of power and excessive secrecy during apartheid. Considerable legislative changes have consequently been made in the post-apartheid era in an effort to ensure that the intelligence services uphold international surveillance standards, the rule of law, and democratic principles such as transparency, accountability, and impartiality. At the centre of these legislative changes is the Constitution, which provides a framework for the intelligence services to rid it of its apartheid-era characteristics, and to create structures that ensure that it effectively pursues its mandate, while also upholding democratic principles. This study draws the conclusion that, despite these extensive legislative changes, the intelligence services are still plagued with inefficiency, excessive secrecy, politicisation, and abuse of power that pose a significant risk to the democratic dispensation in South Africa. The intelligence services are not currently in compliance with the Constitution, international surveillance standards, and democratic principles, and it is recommended that several changes to the intelligence oversight structures is needed to ensure compliance.