Scary new secrets Bill

If new official secrets legislation had been on the statute books, the Mail & Guardian‘s award-winning articles about police National Commissioner Jackie Selebi could have been illegal — and M&G reporters could have faced lengthy jail terms.

The Protection of Information Bill was published for comment by Intelligence Minister Ronnie Kasrils last week. A specially constituted parliamentary committee will process it and hold public hearings. Kasrils hopes to have it enacted by the end of the year.

The preamble to the Bill, which is to replace the draconian apartheid Protection of Information Act of 1982, states that its aim is to ‘promote the free flow of information within an open and democratic society without compromising the security of the Republic”.

Provisions include the preservation of valuable state information and the automatic declassification of all formerly secret information older than 20 years, unless it is specifically reclassified.

Uniquely, it also criminalises the abuse of classification by state officials to conceal breaches of the law, inefficiency or embarrassment.

The Freedom of Expression Institute (FXI) slammed the Bill this week, saying it smacked of ‘an attempt to eliminate genuine criticism and to entrench the powers of the executive”. Kasrils, however, writes in commentary appearing in the M&G on April 3 that ‘government has no interest in hampering the work of investigative journalists”.

Red flags

Red flags for reporters include a prohibition imposed by the Bill on disclosing classified records and even a duty to return them to the state. There is no specific exemption for reporters who use the records to expose corruption or the abuse of power. Failure to comply carries a jail term of up to five years.

Heads of state bodies or their delegated officials will have the power to classify documents and other records as ‘confidential”, ‘secret” or ‘top secret”.

Information not in physical form can be ‘designated” to prohibit disclosure.

Investigative reporters could arguably find themselves negotiating a perpetual minefield under a section dealing with ‘hostile activity offences”, which carry penalties of up to 25 years in jail.

These offences criminalise the collection and disclosure of ‘sensitive information” — a category more loosely defined than ‘classified information” — if the intention is to ‘prejudice the state”.

Information is regarded as ‘sensitive” if it endangers the ‘national interest”, which encompasses not only ‘the survival and security of the state” and the ‘pursuit of justice [and] democracy”, but also ideologically loaded values such as growth and free trade.

Explicitly included among matters in the national interest are ‘defence and security plans”, ‘significant political and economic relations with international organisations and foreign governments” and even ‘details of criminal investigations”.

This means that newspapers and journalists reporting on matters such as the Scorpions’ investigation of Selebi or on the arms deal could conceivably be prosecuted if authorities decide there was an intention to prejudice the state.

The ‘hostile activity offences” section appears to have been drafted primarily in response to the threat allegedly posed by private intelligence operatives, although it does not distinguish between their work and that of journalists and bona fide researchers. The implication is that the provisions will apply across the board.

Last month Safety and Security Minister Charles Nqakula reportedly said the Bill aimed to stem intelligence gathering by ‘unauthorised entities”. The dissemination of allegedly false information by ‘information peddlers” associated with the composition of the Special Browse Mole report were of particular concern, Nqakula said.

The Special Browse Mole report, compiled by the Scorpions with the help of outside sources, alleged that there was foreign support for Jacob Zuma’s campaign to win the ANC presidency. Parliament’s joint standing committee on intelligence has condemned the report as illegal intelligence gathering. Members of this committee will serve on the ad hoc committee that will process the Bill.

In his M&G commentary Kasrils motivates for some private intelligence activities to be outlawed, writing: ‘Our history has demonstrated that certain individuals knowingly supply false information to our intelligence structures with the sole purpose of undermining the integrity of government institutions.”

Kasrils writes that government recognises ‘the valuable role of the media in keeping the public informed and in exposing abuse of state authority where it occurs” and that ‘government’s interest is only in preventing disclosure of information that by law needs to be protected”. He emphasised that it would be a crime for state officials to classify documents as a way of hiding ‘incompetence or corruption”.

The FXI’s Melissa Moore said this week that no proper measures were included in the Bill to address public concerns about the abuse of power and information. ‘On the face of it the Bill appears to be about preventing proper and appropriate public investigation of the activities of ‘organs of state’.”

She said the FXI was concerned about the ‘numerous clauses” granting state officials the right to classify information and the reliance on appeal procedures which reverted to ministerial determination. ‘All of this smacks of an attempt to eliminate genuine criticism and to entrench the powers of the executive.”

Last year the National Intelligence Agency invoked the apartheid-era Protection of Information Act to prevent the M&G reporting on a top-secret report handed to axed spy boss Billy Masetlha during his ‘hoax email” trial.

But reliance on the old Act has been the exception rather than the rule, perhaps because of its apartheid pedigree and concerns that it would not pass constitutional muster. The new Bill, if enacted, is likely to remove such qualms.