Legal experts have challenged the ANC’s claim that international precedent does not show a need for a public interest clause in legislation concerning the protection of state information.
A public interest clause would protect individuals who disclose classified information on the basis that the public’s right to know outweighs any potential harm that would come from revealing the information. Civil groups lobbied to have such a clause included in the Protection of State Information Bill but it was not included.
As the Bill stands, anyone who receives leaked documents would be compelled to hand them to the police or face prosecution. If they felt the information was in the public interest they would then have to request that the minister of state security declassify the documents. Those who contravened the law would be subject to a fine or imprisonment of up to 25 years.
During a National Assembly debate on the Bill earlier this month, State Security Minister Siyabonga Cwele said: “We have looked at international best practices and there is no country which practises such reckless practice.” He said that even Britain’s Official Secrets Act did not include a public interest defence.
But Prisca Orsonneau, a lawyer at the Paris Bar and coordinator of the legal committee of media-freedom organisation Reporters Without Borders, said that Cwele’s statement was caricatured Western countries’ laws and showed that the ANC lacked sound legal advice in drafting the Bill.
“The reality is more complex than that,” she said. “It is not because Western countries are not always in accordance with the best practices that South Africa should not respect international standards.”
According to Orsonneau, some countries, including the United Kingdom, had specific laws to protect whistleblowers, while others had access to information laws that took into account the public interest. There were exceptions for extremely sensitive material but these had to pass a “harms test”, in which a judge weighed the legitimacy of the state’s reasons for keeping the information secret and the risk that releasing the documents posed to national security against the right to freedom of expression.
Jonathan Klaaren, dean of the Wits University law school, said that both the government and those opposing the Bill should recognise that a public interest defence was not necessarily as simple as inserting a clause into the legislation.
“Even where there is no explicit public interest defence there can be an implicit public interest defence,” he said. In such cases courts would be called on to interpret the law and could find a way to allow disclosure because of public interest.
In the United States, for example, there was no single law concerning disclosure of classified information. Rather, there was what the Harvard Law Review referred to as “a patchwork of laws and provisions serving that function, each applying in different circumstances”.
An executive order on classified national security information issued by US President Barack Obama last year stated that information could be classified only if its unauthorised disclosure “could reasonably be expected to cause identifiable or describable damage to the national security”, and also that “if there is any doubt about the need to classify information it shall not be classified”. It also specified that nothing in the order would limit the protection afforded by other legislation, including the American Constitution and three related Acts.
This contrasts sharply with South Africa’s secrecy Bill, which, if it is promulgated, would take precedence over other Acts, including the Promotion of Access to Information Act.
Constitutional law expert Pierre de Vos said there was a precedent for a public interest defence. He pointed to the Council of Europe Convention on Access to Official Documents, the international standards set out by the non-governmental organisation Article 19 and to Canada’s Security of Information Act.
The European convention states that access to information contained in an official document may be refused if its disclosure could harm specific security interests, unless there is an overriding public interest in disclosure.
Canada’s laws concerning state secrets include a public interest defence which explicitly states that individuals who disclose classified information will not be found guilty of an offence if they have acted in the public interest.
The passing of the Protection of State Information Bill came as no surprise, raising the threat to media freedom. View our special report.