There are still snags in the current secrecy Bill which need to be overcome before the messy democratic success is turned into good law.
Last year, while the Protection of State Information Bill was still stuck in the quagmire of the National Assembly’s ad-hoc committee charged with processing it, IFP MP Mario Oriani-Ambrosini remarked that a bunch of lawyers around a table would have found solutions in no time at all.
By then, MPs had slogged and fought for months over the simplest of changes, buffeted between party bosses, the state security ministry and the demands of civil society. Oriani-Ambrosini, a member of the committee and a lawyer by profession, was well placed to comment.
After a major concession by the ANC this week fell horrendously short not for lack of intent, but because of bad drafting, the IFP MP’s solution seemed just what the doctor had ordered.
But that would not be democracy. And while democracy is messy - very messy in this case - it is the same democracy that saw the Bill substantially amended for the better already. Had it not been for public pressure and head butting and epithet slinging over the course of the last two years, the original, deeply flawed - and, by the way, human-rights-lawyer-drafted - version of the Bill would have been law by now.
So, now that democracy has been identified both for its imperfection when it comes to the finer points of drafting, and for being our best hope to come to the rescue after all, let us examine some of the main snags our representatives have to overcome:
Public interest defence
ANC MPs on the National Council of Provinces committee now processing the Bill finally dropped their bombshell concession - the inclusion of an exemption similar to the “public interest defence” that has been civil society’s and the media’s main demand since 2010 - late on Thursday. It happened without fanfare, and without any overt acknowledgement of the momentous about-face after the party and the ministry of state security had kicked against it so uncompromisingly for so long.
The exemption states - or attempts to state - that one cannot be penalised for disclosing a classified record if the disclosure reveals criminal activity or if the record should not have been classified in the first place.
But there are significant hitches:
- The exemption has been added to what may be called the “simple disclosure” offence. But there is a parallel “disclosure of a state security matter” offence which is not covered. The latter offence relates to the classified documents of the State Security Agency (SSA). The effect will be that whistleblowers, journalists and activists wanting to blow the whistle on corruption and other forms of crime will be fine if they do so at the hand of documents classified by the police or military, but not documents of the SSA. This is irrational and, one hopes, an oversight.
- There are circumstances other than the exposure of criminal activity that should also be exempted in the public interest, to whit when “an imminent and serious public safety or environmental risk” needs to be exposed. Those exact words appear elsewhere in the Bill, under the provisions to apply for a record’s declassification, so one would hope that the ruling party and ministry should have no principled objection to include those in the exemption. Again, a matter of drafting.
- The second half of the exemption, which appears to shield one from being penalised from exposing a record which should not have been classified in the first place, is so unintelligibly worded as to raise doubt that it will achieve its purpose. A disclosure is exempted if it reveals “criminal activity for ulterior purposes listed in section 14 and section 47”. Those two sections deal with the conditions under which records may and may not be classified, and criminalising wrongful classification. But what on earth does “criminal activity for ulterior purposes” mean?
- The risk remains that a whistleblower, journalist or activist who discloses a classified record with the purpose of revealing corruption or other forms of crime may be maliciously prosecuted under the espionage or related sections of the Bill, where again no public interest defence or exemption is available. More on that immediately below.
The three offences for which the harshest penalties have been reserved are “espionage”, “receiving state information unlawfully” (for the purpose of espionage) and “hostile activity” (similar to espionage, but where the beneficiary is for example a terrorist organisation rather than another state).
The courts of the world - east, south, west and banana - are littered with examples of journalists and activists prosecuted as “spies” for lack of any other ammunition in the arsenal with which to harass persons who bring uncomfortable facts to light. While this is unlikely to happen in present-day South Africa, good law needs to provide against abuse, and that is where the clauses dealing with these three offences fall down.
After the problem was pointed out to MPs in the National Assembly committee last year, they hurriedly inserted the word “intentionally” in each offence - as in it is a crime to “intentionally communicate … state information classified top secret which the person knows … would directly or indirectly benefit a foreign state”.
But it went in the wrong place. A journalist who “intentionally” publishes a classified record to expose corruption but which he or she has to admit would, as a side effect, also give even indirect benefit to a foreign state would, on the current wording, be guilty of espionage.
The solution is simple - see how this, with the intent only slightly redeployed, fixes the problem: It is an offence to “communicate state information classified top secret with the intent directly or indirectly to benefit a foreign state”.
Again, at a policy level there should be no bar to accepting the change. It is simply a matter of getting the drafting right.
The Bill suffers another dozen or so defects which, if fixed, will turn it into one of the better examples of its genre internationally. A few examples:
- The definition of national security - which is crucial to whether there will be “overclassification” of state information - remains overbroad. This is largely because of circular references arising from the equation of national security with factors such as “protection against … espionage” and “protection against … exposure of a state security matter”. By way of example, this will empower an overeager authority to classify a record simply to prevent it falling into the hands of a foreign power, and not because the document contains information genuinely important to national security. Technically, your friendly neighbourhood spook would be entitled to classify his shopping list for no reason other than that he does not want a foreign power to have sight of it.
- The definition of “state security matter” - which is crucial as such a matter is protected from disclosure on pain of up to 15 years imprisonment - is dangerously overbroad. Not only does it include any matter “dealt with” by the SSA, but also the SSA’s “functions”. This draws a complete veil of secrecy over the agency’s organisational being and work - not only work genuinely important to national security.
- The Classification Review Panel, one of the great concessions as it will provide oversight over state organs’ classification decisions, remains too closely tied to the state security ministry, inter alia as the ministry will control the panel’s budget.
- The review panel remains inaccessible to members of the public - it would have been an inexpensive and less formal alternative to the courts, should there be a dispute as to whether a record should be declassified.
- In terms of the transitional arrangements, information classified under old and constitutionally problematic legislation and policies will remain classified under the new Act pending a review - for which no time limit is set. This means journalists, academics and many others will become instant criminals for hanging onto their treasure troves of apartheid-era files revealing human rights abuse, for example, even if they do not engage in any further disclosure of such records. The easy solution would be at least to exclude the crime of possession from the transitional arrangements.
The Bill remains deeply flawed. But for the first time, there is real light at the end of the tunnel. On a policy level, the once-yawning gap between the ruling party and civil society is all but bridged. Now comes the hard part: to turn messy democratic success into good law.
Stefaans Brümmer has been involved in the campaign against the Bill both as managing partner of the M&G Centre for Investigative Journalism and a member of the Right2Know Campaign. These views are his own. The M&G Centre for Investigative Journalism, supported by M&G Media and the Open Society Foundation for South Africa, produced this story All views are the centre’s. www.amabhungane.co.za.