No easy passage for Secrecy Bill

Posted 23 April 2013 Written by Ciaran Ryan
Category Transparency

Few proposed laws have attracted as much controversy as the Protection of State Information Bill, otherwise known as the Secrecy Bill. In its original form, it drew a veil of secrecy over pretty much whatever government deemed a state secret, much like its apartheid predecessor, the 1982 Protection of Information Act Bill.

The media, trade unions and civil society rounded on this outrage and kicked it back from whence it came. The drafters have since come up with a softened-up version, which was approved by the ANC and opposition parties this week. Interestingly, opposition parties approved the changes while remaining fundamentally opposed to the bill.

The bill will be debated this week by the National Assembly, and could then pass into law.

According to Sapa, opposition parties believe it remains unconstitutional largely because it seeks to legislate the keeping of records of provincial archives. They believe this has no place in an official secrets act. DA MP Dene Smuts says if the bill were to deal with provincial archives it should have been processed as a Section 76 bill, not a Section 75 bill as was the case.

The opposition plans to petition President Jacob Zuma under Section 79 of the Constitution to refer the bill back to MPs to scrap the provision on archives from the bill, or refer it directly to the Constitutional Court for review.
Either way, the bill faces a rocky climb to the statute books. Rights group Right2Know, which campaigns for transparency in government, has called on MPs “to remember the spirit of 27 April 1994 when we elected our first democratic government and collectively committed ourselves to open, transparent, and participatory government. Members of the National Assembly must not betray our democracy. We call on MPs to vote with their conscience and reject the Secrecy Bill.”
Right2Know says the Secrecy Bill only has narrow protection for whistleblowers and public advocates that excludes a range of matters in the public interest like shady tendering practices or improper appointments within key state agencies. “This half-measure fails to acknowledge the urgent need to address South Africa’s whistleblower crisis — as well as the global abuse of national security laws to protect state interests against the scrutiny of citizens.”

The bill was substantially revised after review by the National Council of Provinces (NCOP). One major improvement is clause 41(c) of the bill, which protects anybody who publishes classified information to reveal a crime, from prosecution. This was after widespread criticism of the original version of the bill, which excluded a public interest defence for whistleblowers and journalists, who faced jail time for revealing secret information.

Another improvement is the removal of a clause from the original version of the bill that overrode the Promotion of Access to Information Act. Also removed is the threat of severe prison terms for anyone revealing information and another clause which imposed heavy jail sentences for revealing state security matters.

But there remain justifiable concerns over the sweeping powers conferred on government to stifle scrutiny of its behaviour. According to Right2Know, a whistleblower, journalist or activist who discloses a classified record with the purpose of revealing corruption or other criminal activity may be prosecuted under the “espionage” and other clauses not covered by the proposed public interest defence included in the revised version of the bill.

People can be charged with “espionage”, “receiving state information unlawfully” (to benefit a foreign state), and “hostile activity” without proof that the accused intended to benefit a foreign state or hostile group or prejudice the national security; only that the accused knew this would be a “direct or indirect” result.

Citizens tend to give government the benefit of the doubt that such laws will be used sparingly, but that is a dangerous assumption. One need only look at the evisceration of civil rights in the US following 9/11 to appreciate the relentless stealth of politicians and bureaucrats in winding back the clock of freedom. Indeed, one need look no further than our own experience in South Africa, barely 20 years after the Constitution was first drafted.

The Secrecy Bill is rightly regarded as the most serious assault on South Africa’s freedoms in the last two decades, since it could – in practice – shut off parts of the administration from scrutiny. This is because the definition of “national security” is so elastic that it could be expanded to cover areas far removed from security matters, while researchers, journalists and others could conceivably fall foul of the espionage clause, which does not only apply to foreigners. Those transgressing the loosely-framed espionage clauses could face up to 25 years in jail.

“While the Bill limits the number of agencies and people that can classify, it still gives powers of the Minister of State Security to give classification powers to other state bodies (and junior officials) without adequate public consultation,” says Right2Know in a statement released this week.

“The Secrecy Bill still lacks of a Public Domain Defence, effectively criminalising the population at large when classified information becomes public, rather than holding those responsible for keeping secrets accountable.”

The procedure permitting applications for the declassification of classified information is in conflict with the Promotion of Access to Information Act – despite commitments from the NCOP to the contrary. The body established to review this process – a Classification Review Panel – is not sufficiently independent and the simple possession of classified information appears to be illegal even pending a request for declassification and access.

Information that has been made secret in terms of old and potentially unconstitutional laws and policies will remain classified under the Bill pending a review for which no time limit is set. This includes information classified under the apartheid era Protection of Information Act of 1982 and the government policy adopted in 1996, the Minimum Information Security Standards.

If passed the Bill would add to the generalised trend towards secrecy, fear and intimidation that is appearing in South Africa today, says Right2Know, which says it remains committed to challenging this legislation through any means necessary – including taking legal action – should the National Assembly vote to pass the Bill and the president sign the Secrecy Act without addressing these issues.
Relevant Legislation:
Protection of State Information Bill (Secrecy Bill)
Constitution of the Republic of South Africa
Promotion of Access to Information Act

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