Analysis: secrecy in South Africa is a crumbling power


Amid the outcry over what opponents with some justice call the Secrecy Act, we may have lost sight of the realities of the 21st century in which we live. Wikileaks and Anonymous should be a wake-up call to government.

Passing the Protection of State Information Bill in its current form is likely to provoke the very dangers it is designed to prevent. In their deliberations, the National Council of Provinces, and the president himself, both of which still have to give their assent before it becomes statutory law, ought to consider not only whether the intent of the law is justified, but whether it is likely to achieve this intent. As it stands, it is not.

It is worth specifying what the Secrecy Act does and doesn’t do. Much of the public outcry has been sweeping and unjust to the legislators that drafted the Bill and responded to public consultation in some ways.

The Bill has evolved through several incarnations. The original Bill was not so terrifying, although flawed. A redrafted version was a monstrosity. It permitted almost any government bureaucrat to declare information secret – at some classification level – on almost any conceivable grounds. Merely affecting South Africa’s “national interest” or “economic interest” was sufficient, and frankly, what government document does not affect one of these in some way?

The argument that such a law could and would be used, despite its stated intent to cover up corruption, was well justified.

However, the Bill that was passed by Parliament this week is a far cry from the original. As the Nelson Mandela Centre of Memory rightly says: “The dramatic surgery that the Protection of Information Bill has undergone during the course of the Parliamentary process has meant that it is now close to being an official secrets law of more or less conventional scope.”

It is easy to lose sight of this amid the outcry of “Black Tuesday”. It is easy to chant populist slogans implying that governments ought to have no secrets from the people on whose behalf they work. But such views are naïve, and politicians are quite right to reject them with contempt.

The remaining problems with the Bill are well analysed by the office of Mandela. The primary issue is that it depends on the public interest clause of the Promotion of Access to Information Act. This clause, however, places disclosure decisions in the hands of the very officials who seek to withhold the information in the first place. This is a breach of the separation of powers, and does not confer a legal defence to whistleblowers or investigative journalists who disclose information without official permission to do so. Such a legal defence is crucial to an open democracy.

A second issue of concern is that the mere act of disclosure is criminalised, irrespective of the harm it might cause. The original Bill attempted to scale the criminal offence to the harm caused to the interests that are protected by the Bill. This is a fundamental difference. A reversal to what the Nelson Mandela Centre calls the “harm test” of the original drafting would protect citizens from Draconian penalties for disclosures that cause minor harm, cause no harm at all, or in fact protect the interests of the country.

The current Bill remains too broad in its definition of “organs of state”, applying to minor departments and state-owned enterprises as much as it applies to the Department of State Security or Department of International Relations and Co-Operation. It stands to reason that diplomats, soldiers and policemen have legitimate needs for secrecy. It is much less clear that the Department of Minerals and Energy Affairs has such a need in its negotiations with oil companies, that Eskom has such a need when setting tariffs or justifying the environmental impacts of coal-fired power stations, or that Cricket South Africa has such a need when discussing bonuses.

The centre also notes as a concern that the Bill no longer contains an automatic declassification clause.

The persistence of these flaws has sparked public opposition, particularly from journalists and editors, to which the ANC majority in Parliament has reacted with aggrieved belligerence. While it is probably correct in saying few opponents have bothered to read the Bill that was voted upon on Black Tuesday, it lost the argument when the minister of state security, Siyabonga Cwele, made the ludicrous claim that those who oppose the Bill on the grounds mentioned are motivated by foreign spies. Former cabinet minister Jay Naidoo has compared this outburst to the “Rooi Gevaar” propaganda of the Apartheid era. The irony is that warnings about Soviet espionage were more justified in the context of the Cold War than Cwele’s paranoia is today.

In this toxic atmosphere, the ANC may be willing to ram through a law that remains Draconian and reminiscent of the Apartheid era, refusing to grant a legal defence of acting in the public interest to those who breach its information classification laws. But does it have the power to enforce its will?

Recent history suggests it does not. Modern technology has made it all the more important that governments are seen to act with justice and prudence, extending power only as much as is necessary to protect legitimate activities. If the public is not broadly convinced that the government’s claims to secrecy and confidentiality are narrow, and genuinely protect the interests of citizens, some among them will use the simple technical means at their disposal to circumvent secrecy, and may well cause true harm to the public interest.

Almost a year ago, I warned in a column that Wikileaks is a danger that will provoke governments and will lead not to greater openness, but to greater secrecy. The Black Tuesday Bill is a case in point. However, the provocation works in the opposite direction too, and politicians would do well to note this.

Wikileaks has provided a demonstration that governments simply no longer have the power to enforce secrecy against determined outsiders. The US government may charge Bradley Manning for his role in the disclosures, and rightly so, but the harm has been done. The main enablers – unelected, unaccountable individuals like Julian Assange – are outside the conventional reach of the law.

Loosely organised underground groups such as the hacker collective “Anonymous” are equally threatening. At the mere hint of provocation, unknown individuals can deploy technical attacks against government or corporate targets, causing costly inconvenience at best, and grave harm at worst. Protected by encryption, ‘anonymising’ networks like Tor, and the limits on enforcement power provided by national boundaries, which do not exist online, these groups are a force to be reckoned with.

Such groups depend, however, on public sympathy for their anarchic “stick it to the Man” ethos. They will quickly lose support, and rouse the ire of equally powerful countervailing groups, if they are seen to act unjustly, or if justice can be achieved by legal means.

By refusing to correct clauses in the Protection of State Information Bill that harshly penalise whistle-blowing, endanger investigative journalism, and give cover to corrupt politicians, the ANC’s legislators are swimming against the tide of history. The aggrieved politicians may try to cast the media as enemies of the legitimate interests of the country, but it is only a matter of time before its claims to secrecy are exposed as a sham by forces far less concerned with the public interest than the media.

After all, journalists are subject to the judgment of their readers, as well as the law. Most can be relied on to consider the public interest, especially if they might have to convince an independent court of law to avoid imprisonment. This is not true for the shadowy, decentralised, and entirely uncontrollable groups that haunt the anarchic underbelly of the Internet.

If the media is not actively enabled to hold the government to account, but is forced to operate under the threat of imprisonment even when they act in the public interest, the government should expect far less accountable forces to do so. Cwele’s paranoia will become a self-fulfilling prophecy.

Parliament will rue the day the Secrecy Act was signed.