Democracy watchdog IDASA says South Africans’ Parliamentary representatives faces a critical decision today and tomorrow week: deciding how much secrecy should be allowed.
It says the Protection of Information Bill, drafted by the Department of State Security, has two legitimate objectives. “It aims to replace the existing 1982 apartheid-era law, which imposes excessive secrecy, and to establish a statutory framework to protect state information from loss, alteration or destruction, as well as from disclosure to the public in certain circumstances. To this end, it proposes a system for preserving, classifying and declassifying state information to regulate access to all information in the hands of state officials.
“The Bill’s drafters indicate concern over the problem of information ‘peddling’, and therefore create various offences, along with harsh sentences, for the unlawful disclosure of information,” IDASA says in an opinion piece published on its website. The latest version of the Bill (the 2008 version was withdrawn following strong opposition from civil society and others) “will allow all organs of state – approximately 140 bodies, ranging from municipal managers, to parastatals, to the Minister of State Security – to withhold information on highly subjective and potentially unconstitutional grounds,” IDASA’s writers continue.
They remind South Africa’s Constitution establishes a robust right of access to information, which is given concrete expression in the Promotion of Access to Information Act of 2000 (PAIA). This framework recognises that the free flow of information undergirds core democratic requirements of openness, government responsiveness and accountability, and informed debate. Consequently, the Protected Disclosures Act of 2000 (PDA) allows otherwise sensitive information to be disclosed to selected persons if it is in the public interest. “This Bill will close down that democratic space,” they warn.
It acknowledges these democratic principles and requires officials making classification decisions to consider the benefits of openness. Thus, they may classify information only where there is a legitimate need to do so, and it is an offence to classify information for an ulterior purpose. “Disconcertingly, however, the Bill subordinates these principles to national security, which ‘may not be compromised’. More worrying is the Bill’s vague and excessively broad definition of the ‘national interest’, which could permit excessive and unjustified secrecy by state bureaucrats.
“The definition of ‘national interest’ includes not only the ‘survival and security of the state’, which one might reasonably expect, but also ‘all matters relating to the achievement of the public good’, ‘all matters relating to the protection and preservation of all things owned or maintained for the public by the state’, among others.
“Given this all-embracing definition, even the most well-intentioned public servant is likely to feel compelled to be cautious and to over-classify, unnecessarily restricting even legitimate access to information. The Bill contains harsh punitive measures for disclosing classified information, even criminalising a person who innocently receives such information with no intention of causing harm. The impact on investigative journalism could be severe: we may never again read a newspaper report about an irregular state tender, or about corruption in the public or private sector,” IDASA warns.
“The dangers of this approach are clear. With such vague ‘guidance’, hundreds of public servants will exercise their discretion and decide whether or not to classify a document. The potential for a thoroughly confusing proliferation of interpretations will render PAIA almost unworkable for the ordinary citizen. And courageous whistleblowers will almost certainly be silenced.”
IDASA says it “is therefore essential that parliamentarians achieve an appropriate balance that recognises the complex nature of the national interest, instead of reducing it to the equivalent of national security. The Bill must be fundamentally redrafted so as to provide clear, specific and fair guidance if it is to pass constitutional muster.
“Parliamentarians should craft a classification regime that protects and promotes transparency and accountability – non-negotiables in our constitutional democracy. The Bill should not weaken the existing transparency framework which seeks to protect the public’s right to know about the governance of public affairs that directly affects people’s lives and wellbeing.”
The FW de Klerk Foundation had similar concerns last week, with its executive director, Dace Steward, accusing the drafters of Orwellian “doublethink”, the ability to hold two diametrically opposing views on the same topic at the same time.
The foundation warns that on the one hand the Bill recognizes the “harm of excessive secrecy”
and the need to “promote the free flow of information within an open and democratic society”. But on the other it establishes the basis for the extreme and arbitrary restriction of public access to
government information. “It does so by creating such broad scope for the classification of information; such wide executive powers and such draconian punishments – that the government would be able to staunch the flow of information to the public as it sees fit.
“Any government information can be classified if its disclosure would be harmful to the ‘national interest’. The ‘national interest’, in turn, is defined so broadly that it could affect any government activity. It includes ‘all matters relating to the advancement of the public good’ and ‘the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound international relations’.
It also covers the “the protection and preservation of all things owned or maintained for the public by the State” – thus potentially removing from public scrutiny information about problematical
parastatals like Eskom and SAA. “The Bill goes further. It extends classification to commercial
information in the government’s possession if the disclosure of the information could endanger the ‘national interest’ or the interests of organisations or individuals. Thus, documents relating to state
tenders could be classified and kept away from public examination.
“Heads of state organs would be able to delegate their responsibility for classification to any ‘subordinate staff member’ – so the free flowof information could be shut down at a relatively low level. Whole file series – or classes of information – could be classified on a collective basis. The public can appeal to have information declassified: to whom? – to the minister whose department classified it! Fortunately, the public could still request access to classified information via PAIA. Where the Minister refuses such requests, applicants would be able to lodge an appeal with a PAIA tribunal. There is, however, a catch: If the requested information is classified as top secret the government may refuse to confirm or deny it even exists!
“The draconian penalties prescribed by the Bill include sentences between 3 and 25 years without the option of a fine. This is particularly intimidating, because the accused would, according to legal experts, not even be able to mount a public interest defence. All governments have legitimate reasons for protecting secret military, security and diplomatic information – as well as private and
personal financial and medical records. However, experience shows that they also have a strong inclination to conceal information exposing corruption, incompetence and the illegitimate pursuit of
private and party interests (vide the Arms Deal). The bill does, indeed, make classification of information for such illegal purposes punishable by prison sentence up to three years (with the option of a fine). However, in another Orwellian twist, it is most unlikely that information concerning illegal classification would ever come to light since it would itself be classified!
“Everything depends on the government’s intentions – and there are some disturbing pointers to
the intentions behind this Bill. Firstly, the authors have almost entirely ignored the recommendations of the … Ministerial Review Commission on Intelligence that was established to consider the Bill’s predecessor which was withdrawn… The Commission comprised Joe Matthews, Dr Frene Ginwala and Laurie Nathan. It acknowledged that the 2008 Bill ‘recognised the importance of transparency and the free flow of information’… but added that it ‘also has a number of provisions that are likely to promote secrecy. In particular the Bill’s approach to ‘secrecy in the
national interest’ is reminiscent of apartheid-era legislation and is in conflict with the constitutional right of access to information.”
The Commission was critical of the Bill’s complexity and of the central role that it gives to the National Intelligence Agency precisely because the NIA [now State Security Agency] … “is not oriented towards promoting the constitutional right of access to information.” It observed that
“even if the disclosure of certain state information does endanger some aspect of the national interest, from a constitutional perspective it might often be the case that non-disclosure poses a
greater threat to the national interest.”
The government commission scathingly criticised the all-encompassing concept of ‘national interest’ and recommended that it should be scrapped. It said that only the Minister of Intelligence [now State Security] should have the prerogative to classify categories of information – subject to
comment by parliament and interested parties. It called the government’s ability to refuse to confirm or deny the existence of top secret information ‘Orwellian’ and recommended that declassification appeals should be directed – not to the minister involved – but to the Human Rights Commission or to a court.
“The second pointer is that – unlike the 1982 Act that it is meant to replace – the Bill’s penalties do not include the option of a fine. This will further intimidate whistle-blowers and journalists by ensuring that those who divulge state information will serve long prison sentences without the possibility of others paying their fines.
“Thirdly, the reintroduced Bill has scrapped the important limitation included in the 2008 Bill that classification “should be used sparingly.
“Finally, the Minister of National Intelligence, Dr Siyabonga Cwele, has made it clear that he intends to criminalise the activities of what he calls ‘information peddlers’. NIA’s legal advisers have
admitted that whistleblowers would be charged if they were caught with classified documents. Cwele has insisted that government wrongdoers should not be exposed in the media – but should rather be reported to the relevant authorities.
The Bill is irreconcilable with the Constitution’s founding principles which “ensure accountability, responsiveness and openness,” Steward avered. “The Bill’s professed support for the free flow of information is cynical doublethink. Its single-minded intention is to control the flow of government information by inhibiting whistle blowers and stopping investigative journalism. It is a direct assault on the Constitution and should be vigorously opposed by all South Africans who support constitutional government. … The remedy is simple: the Bill should be withdrawn and redrafted in accordance with the recommendations of the Ministerial Review Commission.”