The Freedom Charter promises free exchange of ideas, and the Bill of Rights guarantees the free flow of information, says Zwelinzima Vavi.
The Protection of State Information Bill has been the subject of unprecedented and sustained negative attention both locally and internationally.
Cosatu’s engagement with this Bill began with our submission on the original Bill to Parliament in June 2010. In fact, it was as a result of our political intervention, earlier this year, that the passage of the Bill through Parliament was slowed down to accommodate numerous amendments, which represent a vast (albeit insufficient) improvement over the original Bill. Most recently, our central executive committee reaffirmed our opposition to the Bill in its current form and indicated we would pursue a Constitutional Court challenge to it, should the fundamental substantive problems not be addressed.
Our stance is informed by the need to ensure the promotion of openness, transparency and accountability in governance and the protection of the complementary objectives of public interest and an appropriate definition of “national security”. We also maintain the need to step up on our fight against escalating corruption in both the public and private sectors.
Articles of 6 and 8 of the Freedom Charter respectively provide that “The law shall guarantee to all their right to speak, to organise, to meet together, to publish, to preach, to worship and to educate their children” and that “All the cultural treasures of mankind shall be open to all, by free exchange of books, ideas and contact with other lands”.
These provisions laid the foundations for corresponding rights in our Constitution, in which the Bill of Rights says that “Everyone has the right to freedom of expression”, including “freedom of the press and other media”, “freedom to receive or impart information or ideas”, as well as access to “any information held by the state” or “held by another person and that is required for the exercise or protection of any rights”.
These rights reflect a major departure from our repressive past. These are the core values of the ANC and the democratic movement as a whole.
Cosatu agrees that apartheid security legislation should not remain on our statute books. We also accept that an appropriate piece of legislation would have to replace it. We agree that all states have secrets, but these relate to the protection of citizens and the state. Yet the Bill is not limited to this responsibility.
In our view, the scope of the Bill remains excessively wide, despite the revision in clause 3(2) reducing the automatic application from all organs of state to the security services only, though the state security minister may extend this to just about any organ of state (including state-owned entities) if there is “good cause”.
What public interest would be served by placing restrictions on the processing of information? If justified, why should it be implemented by security legislation and not ordinary law? Genuine threats to national security do not arise equally from all sections of the public sector. Why, then, a blanket provision?
The scope of the Bill is further amplified by the inclusion of “national key points” in the definition of an “organ of state”. It is difficult to obtain a full list or even an indication of the number of entities declared key points.
Clause 1 lacks an appropriately constructed definition of “national security”. It includes such problematic criteria as the “exposure of economic, scientific or technological secrets vital to the Republic” as well as “responsibilities to any foreign country and international obligations”.
Should there be publication of the terms of the World Bank loan to Eskom, say, or the terms of a loan made by South Africa to a foreign country, this would violate South Africa’s obligations to a multilateral institution or a foreign country. It would be deemed to have compromised the national interest, despite the compelling public interest in the use of public resources.
Appeals against classification must be made to the minister responsible for that organ of state and thereafter through expensive court processes likely to span many years. There is no accessible and independent review mechanism for ordinary people and workers.
Clause 1(4) states that the Bill trumps any other Act of Parliament, should there be a conflict. In addition to the Promotion of Access to Information Act, there are other pieces of legislation that enforce the rights of access to information. In particular, the Labour Relations Act provides representative unions with the right to information in the course of collective bargaining. We have concerns here about how this could be affected if deemed to affect classified information.
‘Guilty of an offence’
The Bill criminalises possession of classified information by an unauthorised person under clauses 15 and 44. In clause 14 it states that any person who “conspires with — aids, abets, induces or — counsels another person to commit an offence is guilty of an offence”. This would criminalise the trade union officials and advice offices obliged to assist whistle-blowers exposing corruption or other irregular activities.
We disagree with the contention that the Bill has been “aligned” with whistle-blower protections under the Protected Disclosures Act and the Companies Act. To the contrary, our assessment is that it affords little meaningful protection from the dampening effect that the Bill will have on encouraging the exposure of corruption. Criminal penalties would be applicable regardless of the seriousness of the irregularity exposed by an unauthorised disclosure. The Bill excludes any whistle-blower protection for the disclosure of information classified as a state-security matter by intelligence and security agencies.
We are unequivocally opposed to the protection or promotion of acts of espionage or similar activities that are hostile to the state, but we are concerned that the provisions in the Bill are capable of such broad interpretation that it would criminalise anyone disclosing information in the public interest. For example, section 38(1) (a) states that it is an offence to “make available” top-secret information that would prejudice national security. We believe this could easily be used to constrain legitimate whistle-blowing.
Cosatu remains critical of the chronic problems of bias, lack of balanced reporting and diversity in the mainstream commercial media. We have bemoaned the concentration of media ownership in our country, which means there are inadequate levels of diversity and plurality that are so essential to media freedom. In the absence of other viable alternatives, however, it remains one of the broadest forms of the dissemination and implementation of rights of access to information for the masses. Public awareness is integral to holding state institutions accountable.
State censorship and the persecution of journalists and the media would only exacerbate the problems of inaccuracy and bias. It is necessary to facilitate and enhance reporting and investigative journalism in the public interest. Yet the Bill places extensive restrictions on access, possession and disclosure of classified information, so it would severely curtail this objective.
All this shows that substantial technical amendments to the Bill are needed. We accept the need for appropriate security legislation, which means accepting that some restrictions would be placed on the processing of classified information.
But there is a need for a safeguard that would act as a counterbalance to legitimate restrictions, where the public interest warrants this. On this basis we maintain our support for the introduction of a public-interest defence, which would be available especially for whistle-blowers and the media.
Since the inception of this process Cosatu has maintained the need to promote transparent and accountable governance, alongside the protection of complementary rights to access to information and freedom of expression.
We do not believe civil society has any choice but to do all that is possible to ensure the protection of the interests of the working class and the public at large, who would be the most adversely affected by the Bill and who would not have the time or resources to assert their rights. At the same time, we cannot ignore the impact that rampant corruption has had on constraining key priority areas of service delivery.
Gaps in the existing security legislation were cited as the motivation for the haste in channelling the Bill through Parliament, but practical experience has not borne out the argument that our country is facing imminent threats that would compromise our national security. What has been exposed has been largely acts of corruption, including grand corruption. Here the only conclusion that can be supported is that disclosure and media publication in each instance was justifiably and legitimately in the public interest.
This is an edited version of an address by Cosatu general secretary Zwelinzima Vavi to the South African National Editors Forum and the Right2Know campaign this week
The passing of the Protection of State Information Bill came as no surprise, raising the threat to media freedom. View our special report.