Three years later, the Protection of State Information Act is vastly better than when it was tabled but it still does not pass constitutional muster.
Three years since it was tabled, the Protection of State Information Bill is close to becoming law. Despite over a hundred minor and major tweaks spanning over thirty drafts, the forthcoming Protection of State Information Act still does not pass constitutional muster.
Pending a minor technical insertion into the report, the ad hoc committee of the National Assembly (NA) has cleared the path for the Bill’s passage into law.
The ad hoc committee was reconstituted following the Bill’s referral back to Parliament by President Zuma in September this year.
The President, invoking his powers under Section 79 of the Constitution, asked parliament to reconsider the Bill "insofar as sections of the Bill, in particular sections 42 and 45, lack meaning and coherence, consequently are irrational and accordingly are unconstitutional."
The committee confined itself exclusively to the two clauses explicitly identified by the President.
Those clauses dealt with the criminalisation of possession of classified information and criminalization of wrongful classification.
The committee’s review focused largely on typographical and spelling errors, changing "consitutional" to "constitutional" and "foe" to "for" for example.
Thus the wider concerns regarding the Bill have been disregarded. In the absence of yet another referral back to Parliament, it is quite likely therefore that the next stop for the Bill will be the Constitutional Court.
Most opponents to the Bill concede that the current draft is a vast improvement over the one tabled in 2010. The positive elements present in the Bill include the following:
- Its scope is limited largely to Cabinet, the security cluster and their oversight services
- It contains some protections for disclosure of classified documents
- It has a narrower, although still open ended, definition of National Security and a narrower basis for classification of documents.
- Most commercial information is excluded from the Bill’s ambit
- The Bill no longer overrides the Promotion of Access to Information Act particularly in the notoriously secretive security sector.
Each of these elements won through sustained public pressure from a host of organizations under the banner of the Right2Know Campaign. Indeed, the level of public participation around what activists call "the secrecy Bill" is perhaps unprecedented in the history of lawmaking in South Africa.
Yet despite this, significant problems with the Bill remain.
To begin with, the open-ended definition of national security, which forms the basis of all classification, remains problematic. Such a wide definition provides scope for abuse of the law, or at least an inconsistent approach to what will be classified.
The Bill also allows classification of undefined "economic and technological secrets". The consequence of this vagueness is that it prevents State employees from being able to apply the law properly or consistently, and will likely cause the default position to be classification rather than openness.
Other problems include:
- The Bill criminalises simple possession and disclosure of classified information by members of the public, thus transferring the State’s obligation to protect sensitive information to society as a whole. The Bill lacks a public domain defence, under which a citizen can claim that possession of information already in the public domain does not constitute an offence.
- The powers of the minister to extend to other organs of state the authority outside the security cluster to classify documents, largely without oversight and to a potentially limitless number of bodies;
- Classification decisions need not be made public-with the result being a high risk of over-classification;
- The Bill maintains the secret status of all documents classified under Apartheid, with no timeline given for declassification. As such, possession or disclosure of such documents could invite arrest.
- The narrow ‘public interest defence’ in the Bill protects disclosures in the public interest where such disclosures reveal outright criminal conduct. Disclosing shady tendering practices, improper appointments and flawed policy decisions, manifestly in the public interest, would not qualify for such protections.
- The Bill’s espionage offences, which criminalise "receiving state information unlawfully", could be used to punish researchers, activists, whistleblowers and journalists who disclose classified information in the public interest. The espionage offences carry jail sentences of up to 25 years.
In sum, this Bill will entrench state secrecy and stifle the national democratic discourse.
The cause of freedom of expression and access to information has long been an integral part of South Africa’s struggle for a broader freedom. Indeed, the Freedom Charter – lodestar for a bygone era-dictates that "the law shall guarantee to all their right to speak, to organise, to meet together, to publish…."
It therefore behooves the custodians of our democracy-in parliament, courts and in civil society-to reject the secrecy Bill as it currently stands.
Vinayak Bhardwaj is the advocacy co-ordinator for M&G Centre for Investigative Journalism (amaBhungane)
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