South Africa’s Parliament is considering an information secrecy bill the government says will better protect secrets but critics fear could hamper access to market-sensitive data and muzzle media investigations. Global news service Reuters reports the Bill is now unnerving the markets.
The news service says the Protection of Information Bill sets guidelines for classifying state information as well as creating a legislative framework for the government to combat espionage and other hostile activities. The draft Bill protects information on regulators and state-owned enterprises, which critics said could cut investors off from information affecting equity, treasury and foreign exchange markets.
A Parliamentary ad hoc committee on the Bill heard submissions on the draft law Wednesday and yesterday. If passed, the Bill will replace a dated 1982 law. Reuters says there is broad support in Parliament for reforming the existing law. Analysts expect revisions to the current draft bill because its measures are so vague almost any government information could be deemed classified and kept from the public. The bill seeks to prevent the disclosure of data deemed harmful to the “national interest”. Critics say that is too broad a definition which could, for instance, apply to information on power plant expansion at state-owned utility Eskom. “How can you talk about public-private partnerships or privatisation when investors are going to be in the dark about undisclosed information which is secret? They could potentially walk into a bear trap,” said Gary van Staden, a political analyst at NKC Independent Economists.
Security is paramount to any government: ANC MP
Benson Fihla, a member of parliament with the ruling African National Congress, said the reforms in the draft bill were fair. “The security of the country is paramount to any government, and therefore I don’t see any excesses on the Bill that we’ve made,” he said in Parliament. The Bill has reopened debate on media freedoms enshrined in the constitution when white minority rule ended in 1994 and the country achieved full democracy. “In effect it is authorising the minister to decide what information on almost every conceivable subject should be withheld from South Africans,” Raymond Louw, veteran journalist and deputy chairman of media freedom at the South African National Editors Forum, yesterday told lawmakers forming an ad hoc committee to consider the Bill.
The South African Press Association reported MPs were again warned that the Bill will not survive Constitutional Court scrutiny because it rides roughshod over media freedom and the democratic values of transparency and accountability. “The ones (clauses) I have highlighted are clearly unconstitutional and the Constitutional Court would strike them down,” said Dario Milo, a partner at Webber Wentzel law firm, making a representation on behalf of Print Media SA.
“National interest” too wide a definition
The draft says journalists could face up to 25 years in prison if they were found to be in possession of documents or reported on something classified “top secret”. It went even further by denying those accused of contravening it the right to raise the defence of having acted in the public interest, SAPA said. Like others who have objected to the Bill, Milo argued that it sought to create a climate of secrecy by defining national interest and national security so widely that information could arbitrarily be classified. “The bill permits classification of documents that ought not to be classified at all in a constitutional democracy. This results in excessive secrecy and censorship of political expression,” he said.
“The bill endorses this secrecy by creating overbroad definitions of concepts such as ‘national interest’, ‘security’, ‘state security’ and ‘national security’ and then allowing classification based on speculative harm to these nebulous concepts.” Those who drafted the bill had also erred by placing the onus on journalists to justify why they should be granted access to information, rather than requiring the State to show why it should remain classified.
Louw further submitted that the Bill gave the State excessive powers to shroud information in secrecy, and had been stripped of safeguards contained in earlier versions. “This has tightened the State’s grip on maintaining secrecy of information. It also has extended the powers of politicians over the classifying of information.”
He said that an earlier incarnation of the bill, which has been on the drawing board since 2008, contained the cautionary clause that if there were doubt on whether something should be classified, it should not be. However, this has been replaced with a clause saying that in such cases the decision should be left up to the minister of state security. “This introduces political decision-making to what should be a decision based on factual criteria,” Louw said.
“Bill essential for democracy”
But committee chair Cecil Burgess repeatedly argued that the Bill “was essential to ensure the smooth functioning of South Africa as a democracy.” Burgess said he doubted that it could be unconstitutional since it had been drafted by lawyers and used the discredited Browse Mole report compiled by the Scorpions as a supporting argument for the need for a restrictive information Bill.
SAPA says the Browse Mole report, which was leaked first to the Congress of South African Trade Unions (Cosatu) and then to the media, was a prime example of information that should have been investigated, but not published because of its disruptive effect on public life. This was contested by Mail & Guardian investigative journalist Stefaans Brummer, who recalled that the leaking of the report forced former President Thabo Mbeki to order an investigation into its origins.
This brought to light the abuse of the Scorpions for political ends, and eventually led to the demise of the unit. “Public interest was certainly served. The Scorpions’ illegal information gathering activities were exposed,” Brummer said.
He pointed out that if the current Bill had been on the books at the time the Browse Mole report was leaked, senior Cosatu officials including the trade union federation’s general secretary Zwelinzima Vavi, would have been jailed for their role in making it public.
Business Day, in its report, said Mail & Guardian editor Nick Dawes warned MPs added the law, as drafted, “would also be a problem for MPs who would need access to information to satisfy their constitutional mandate for effective oversight of government departments and ministers.”
The Freedom of Expression Institute (FXI) in a statement overnight statement, said it was “deeply disappointed that the Ministry of Intelligence [sic, State Security] is once again attempting to have a Bill, which is fundamentally flawed, passed by Parliament.”
FXI legal expert Melissa Moore says the ambit of the Bill should be restricted to matters “which are strictly to do with the preservation of national security and matters directly related thereto. The protection of personal, commercial, confidential, economic, research and privileged information, to mention a few, and the disclosure of these categories of information by and in respect of both public and private bodies are regulated by the Promotion of Access to Information Act (PAIA) 2 of 2000.
“There appears to be an unnecessary overlapping of the area in which PAIA and the Bill will operate, which will inevitably result in a climate of uncertainty surrounding access to information. It is interesting to note that PAIA provides for the disclosure of information that would usually be protected from disclosure, in circumstances where the public interest in the disclosure of the record clearly outweighs the harm contemplated by the specific provision in PAIA…
Moore says the perhaps most insidious provision in the Bill is section 23(6). “This permits the head of an organ of state to refuse to confirm or deny that information exists where the existence of such information is itself classified as top secret. By its very nature this section is unconstitutional, seeking as it does to avoid transparency and openness, and placing an inordinate burden on journalists and legal practitioners seeking clarity on classified documents.
“It is virtually impossible to draft proper papers for a status review when the existence of the information cannot be verified.”
Business Day says some presenters faced aggressive questions about their patriotism and whether they were demanding carte blanche to do as they pleased.