Secrecy Bill U-turn ruined by bad drafting

Last year, while the Protection of State Information Bill was stuck in the quagmire of the National Assembly’s ad-hoc committee then processing it, Inkatha Freedom Party MP Mario Oriani-Ambrosini remarked that a group of lawyers around a table would have found solutions in no time at all.

By then MPs had 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 “public interest defence” concession by the ANC last week fell well short not so much for lack of intent as for bad drafting, the IFP MP’s solution seemed appropriate.

But that would not be democracy. And whereas democracy is messy – very messy, in this case – it is the same democracy that has already resulted in the Bill being substantially amended for the better. Had it not been for public and interest group pressure over the course of two years, the deeply flawed – and, by the way, human rights lawyer-drafted – original version of the Bill would have been law by now.

So, now that democracy has been identified both for its imperfection as a drafting tool and as being our best hope after all, let us examine some of the main snags our public representatives have yet to remedy.

Public interest defence
ANC MPs on the National Council of Provinces committee now ­processing the Bill finally dropped their bombshell concession late last week: the inclusion of an exemption akin to the “public interest defence” that civil society and the media have demanded since 2010. It was done without fanfare or acknowledgement of the scale of the about-face after the party and the state security ministry had kicked against it so uncompromisingly for so long.

The exemption states that one cannot be penalised for disclosing a classified record if disclosure reveals criminal activity, or if the record was criminally misclassified.

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 that is not covered. The latter relates to the classified records of the State Security Agency. Journalists and activists blowing the whistle on corruption and other forms of crime will be safe if they do so using classified records of the police or the defence force, but not of the agency. 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 dealing with applications for declassification, so one hopes that the ruling party and the ministry would not object at a policy level to including those in the exemption.
• The second half of the exemption shields one who discloses information that was criminally misclassified in the first place; in other words, records purposely classified only to conceal corruption, incompetence, inefficiency and so on. On the face of it this is welcome, but in practice it may be all but impossible to argue in court that the original classifier had criminal intent and did not misclassify in good faith. The solution is in easy reach: delete the requirement that the misclassification must have been “criminal”.
• The risk remains that a whistleblower, journalist or activist who discloses a classified record with the purpose of revealing corruption or other criminal activity may be maliciously prosecuted under the espionage or related sections of the Bill, which again are not covered by the new exemption. The problem is explained below.

Misplaced intent
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 the beneficiary is a hostile group 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 legislative means to harass persons who bring uncomfortable facts to light. Although this is unlikely to happen in present-day South Africa, good law needs to guard against abuse and this 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” into each offence, making it 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 into the wrong place. A journalist who “intentionally” publishes a classified record to expose corruption but that he or she has to admit would, collaterally, also give indirect benefit to a foreign state would, according to the current wording, be guilty of espionage.

The solution is simple. See how the following, with the intent only slightly redeployed, fixes the problem: it is an offence to “communicate state information classified top secret with the intention 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.

Other flaws
The Bill suffers another dozen or so defects that, if fixed, would 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 overly broad. 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”.
• For example, it will allow classification of a record 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 could classify his shopping list for no reason other than that he does not want his CIA counterpart to have sight of it.
• The definition of a “state security matter”, which is crucial because such matters are protected from disclosure on pain of 15 years in jail, is dangerously broad. Not only does it include any matter “dealt with” by the State Security Agency, but also its “functions”. This draws a complete veil of secrecy over the agency’s work  and organisational being (even how much it spends on toilet paper for staff) and not only work genuinely important to national security.
• The classification review panel, one of the great concessions earlier because it will provide “independent” oversight over state organs’ classification decisions, remains too closely tied to the state security ministry, which will control its budget.
• The review panel remains inaccessible to members of the public. Making it accessible will provide an inexpensive and simple alternative to the courts when there are disputes over whether records 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. Academics, journalists – and many an ANC activist, one may add – will become instant criminals for hanging on to their troves of apartheid-era files revealing human-rights abuse. The easy solution would be to decriminalise the possession of pre-Act records, even if disclosure is criminalised, which would allow time for declassification applications.

The Bill remains deeply flawed. But for the first time there is 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 a messy democratic success into good law.

Stefaans Brümmer has been involved in the campaign against the Protection of State Information Bill both as managing partner of the M&G Centre for Investigative Journalism and a member of the Right2Know campaign