Black Tuesday


Parliament will today vote on the Protection of State Information Bill and the ruling African National Congress is expected to ram the draft law through using its majority.

The new law-to-be will replace the dated Protection of Information Act 84 of 1982 and the Mandela-era Minimum Information Security Standards. As has been widely reported, the law will regulate the classification and declassification of certain classes of state information and prescribe penalties for non-compliance. Doubtless, there is need for such a law.

The law also criminalises “information peddling” and espionage – surprisingly still not a crime despite Commodore Dieter Gerhardt’s spying for the Soviet Union from 1962 to 1982 when the US Central Intelligence Agency caught him. (Gerhardt was subsequently convicted and jailed for high treason.)

But the law also has less savoury features that will affect the ability of every South African resident, citizen or not, in the military or in government, or not, to receive and impart information. Particularly objectionable is the criminalisation of the mere possession of classified information – anything considered “confidential”, “secret” or “top secret,” regardless of motive or origin. Allow me a moment to share in some of State Security minister Siyabonga Cwele’s paranoia: what if the state security services, police or anyone else wanted to “set up” someone? All they have to do is email him/her a classified document. Then there are the many reports the military submits to Parliament in open session, sometimes classified “confidential”. Will reporting their content be prosecuted? Or what about some of the invitations the media receive from time to time to attend events, sometimes marked confidential… Under this law, I’d have to rush to my nearest police station to surrender such an invite to the “authorities” and make a full statement – which could still see me prosecuted! Possessing the invite would be crime, as would not expeditiously reporting that possession to the police. Ye gads! How does this improve national security?

Then there is s49 of the Bill, which seperately from all the other restrictions, places a “prohibition of disclosure of state security matter”, defined as including “any matter, which has been classified in terms of this Act and, which is dealt with by the [State Security] Agency or which relates to the functions of the Agency or to the relationship existing between any person and the Agency.” Anyone failing to pay attention to this injunction “is guilty of an offence and liable on conviction to imprisonment for a period not exceeding 10 years, or, if it is proved that the publication of disclosure of such classified information took place for the purpose of its being disclosed to a foreign state to imprisonment for a period not exceeding 15 years.” Charming. Depending on the level of paranoia in Cwele’s office, that could be the end of any reporting, for better or worse, on the State Security Agency – even by non-South Africans living outside the country: the law has “universal jurisdiction”, an increasingly common device that allows SA courts to prosecute offences committed anywhere in the world.

The ANC has protested against comparisons between this vote and Black Wednesday, the banning on October 19, 1977 of three newspapers and a range of black consciousness as well as anti-apartheid organisations. They protest too much. The comparison is by no means misplaced: This Bill, once law, will make it much more risky for defenceWeb – or anyone else – to publish on matters of defence of defence and security. It may also substantially limit what you get to say, write or read on the same.