Protection of Information: Letter from Ronnie Kasrils, 1 June 2011

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Even at this late stage, one would remind our legislators of the adage, “more haste less speed.”

The rush to complete the Protection of Information Bill by the parliamentary committee is worrying and will lead to huge problems and unnecessary tensions in the future. I hate to envisage the unforeseen consequences. It will certainly undermine public trust in the intelligence and security services at a time when confidence needs to be built.

The issues under discussion are complex and sensitive and we need to ensure the proposed legislation does not undermine our Constitution and Bill of Rights. Discussions at parliamentary committee stage so far have not inspired public confidence that the issues have been sufficiently canvassed and considered.  All agree that the outdated 1982 Act must be repealed and that a democratic state has the need to protect sensitive state secrets.

To this end it is noteworthy that the Bill recognises the harm of excessive secrecy. However what is of concern is that the proposed legislation is excessively broad and unfocussed; certain of the penalties (other than that relating to espionage) are consequently extremely harsh; and the crucial need for a “public interest” defence clause is ignored.

The legislation should be primarily concerned with concrete acts which could cause genuine and real national security damage: such as attempts by civil servants to sell state secrets to foreigners or anyone else; the creation of false and deliberately misleading information by civil servants; the wilful identification of secret service employees; photographs of classified government installations. 

Since freedom of expression is a dearly won principle of our liberation struggle it needs to be treated as sacrosanct outside the narrow national security sphere. This must allow the public to gain access on a “public interest” argument as a successful way of the media uncovering government incompetence where it may occur.

In any democratic society worthy of the name there needs to be a clear understanding that government has no right to limit media coverage of stories that are embarrassing – or in the end shown to be only partly true. This is why a “public interest” defence is so crucial to any such security legislation.

It is for this reason that there needs to be flexibility to protect “whistleblowers” where a public interest defence is applicable. Such allowance in the legislation by no means need protect those with a mischievous or sinister intent. Its absence is anathema to freedom of information and of expression.

It is imperative that this principle be fought for. It is not only a matter of media freedom. The requirements of the poor and needy – of those who are cheated by the powerful, the wealthy or the officials who squander the public purse or who fail in service delivery – can only be supported by a free press, by investigative journalism and research, by lively civic organisations.

A pertinent aim of this legislation from its original conception, has been the creation of a system to enable the declassification of masses of government documentation. The system envisaged is so complicated and so hampered by lack of clarity that government will be creating a bureaucratic nightmare. This will act as a regression both from the public right to access   information and to freedom of expression. Civil society is absolutely correct to ask government to think again and not rush in where angels should wearily tread.

Ronnie Kasrils – former Intelligence Minister.



Source: Right2Know, June 1 2011