/ 22 November 2011

Black Tuesday: Secrecy Bill passed in Parliament

The National Assembly voted in the Protection of Information Bill on Tuesday with 229 votes.

There were two abstentions and a 107 votes against it.

The Bill was adopted by majority vote after a division was called by the opposition Democratic Alliance.

All opposition parties present in the House voted against the measure, while hundreds of black-clad activists protested against it outside the gates of Parliament and elsewhere in the country.

Editors who attended the parliamentary session staged a walk-out after the Bill was voted in.

The hotly contested Bill was first introduced in 2008 by then-intelligence minister Ronnie Kasrils.

The Bill was meant to replace a piece of apartheid-era legislation that governed the classification of state secrets. Kasrils sought to create legislation that would protect state secrets but also uphold the constitutional principal of transparent governance. It included a provision that would allow whistleblowers to leak information that was in the public interest without fear of reprisal.

According to Kasrils, this version of the Bill was never tabled in Parliament and was scrapped by ruling party representatives at the committee stage after he resigned from government in September 2008.

When the Bill reappeared, its provisions were even more draconian than before. The new draft sought to create a law that would allow any organ of state, from the largest government department down to the smallest municipality, to classify any document as secret and set out harsh penalties of up to 25 years in jail for whistleblowers.

It came under heavy fire from all quarters of civil society, who said it would obstruct the free flow of information, usher in a new era of secrecy and pose a threat to democracy.

Media and civil organisations insist that the Bill should include a public interest defence, as enshrined in state secrecy legislation in Canada. Such a defence would enable journalists and others who published classified information under pain of prison to argue in mitigation that they had done so in the public interest.

In September, the ruling party agreed to withdraw the Bill and to start a process of public participation to address some of the concerns that had been raised. The move was welcomed by civil organisations and the media but as the months passed it became clear that no real attempt at public participation had been made.

Instead, the Bill made a sudden reappearance on the parliamentary programme and state officials went on the offensive, with State Security Minister Siyabonga Cwele claiming that groups opposing the Bill were “local proxies of foreign spies”.

The DA called the consultation process a “farce” saying the ANC had only consulted in five of the eight provinces under its control. Consultations were still going ahead the night before the Bill went to Parliament. In Mangaung, 100 residents turned up for the hearing but the ANC MP who was meant to conduct the hearing failed to appear. Instead, fliers about the Bill were handed out, a choir entertained the crowd and then food was served.

Kasrils condemned Cwele’s statements as “disgraceful” and said such “inflammatory statements” would encourage members of the intelligence services to “adopt a mindset already noted for excessive secrecy, exaggerated fears and paranoia”.

Shortly before his death earlier this year, struggle stalwart Kader Asmal urged Parliament to take the Bill “back to the drawing board” and urged South Africans to join him in rejecting the legislation.

“It is unsatisfactory to expect the Constitutional Court to do the work that Parliament should be doing. I feel that the executive has not given sufficient attention to the constitutional provisions and the way that the limitation of this right to freedom of expression is reasonable and justifiable in a democratic society,” he wrote.

Sources within Parliament say that, despite protest from media and civil groups from around the country, the passing of the Bill is a foregone conclusion and that it may become law before the end of the year.

The Bill will now go to National Council of Provinces and then back to the National Assembly before the president signs it and it gets gazetted.

If this is the case, those who oppose the Bill would need to challenge it in the Constitutional Court. — Additional reporting by Sapa

The passing of the Protection of State Information Bill came as no surprise, raising the threat to media freedom. View our special report.