Secrecy abuse to be an offence


Government officials wishing to classify information under the proposed Protection of Information Bill will have to adhere to strict guidelines and need a clear and justifiable reason to do so. The Ministry of State Security adds the Bill makes it an offence to incorrectly classify information.

“We reiterate that the Bill makes it an offence to incorrectly classify information to cover corruption, maladministration, incompetence or inefficiencies and the public would have to work with government to ensure this is not the case,” says Ministry of State Security Head of Communication Brian Dube in a statement.
“We are in agreement about the need to ensure that free flow of information remains that oxygen and the lifeblood of our democracy and that any limitations to such a right must be based on legitimate national security grounds that conform to the international best practices,” Dube adds.
“The Minister is on record indicating exactly what information is to be protected, adding that protection does not equal classification. Officials who will be classifying information will have to follow specific guidelines. Over and above this, they will have to apply a two-part test – which requires that there must be clear, justifiable and legitimate national security reason(s) to do so and the need to protect the information once classified. This would, in itself, provide reasons as to why certain information must be classified.

Dube said that with the ongoing interaction with key stakeholders in civil society around the intentions and the provisions of this bill, it appeared there was some form of convergence on the matter, barring a few points which remain areas of contestation. “It is critical for the public to be reminded that the Bill is evolving with the proposals that the ministry has tabled in Parliament … These proposals include the removal of such concepts as ‘national interest’ and ‘commercial information’, as basis for classification. These are some of the fundamental changes that will result in a Bill that is markedly different, clearer, leaner and better than the one currently on the table.
“To dismiss such concessions as ‘cosmetic’ when there was a big outcry on their inclusion in the fist place, is disingenuous and a deliberate attempt to mislead the public on government’s willingness to listen to the public when it speaks and to apply its mind to the issues presented,” Dube said. He did not explain he reference, but numerous civil society, media and free speech activist groups have spoken out against various provisions in the Bill, as well as several omissions, as have diplomats and even two former Cabinet ministers – including retired Intelligence Services minister Ronnie Kasrils.

Dube adds that on the application of the Bill, “we maintain the view that the challenges that have been identified as requiring government’s intervention are not limited to a particular cluster of government but cut across all levels, including parastatals. Limiting the application, as some argue, will not address the clear and present danger of threats and real challenges that have been identified.”
“The application of penalties for unauthorised disclosure applies to those who have been found to have broken the law. It’s not correct to argue, as some have continued to do, that they will apply to society at large. It is critical to understand that when you legislate, the law becomes applicable generally, meaning you can’t legislate for a certain sector of society. 
“The Ministry wishes to emphasise that the independence of those who would be responsible for appeals on what can or cannot be classified is in line with international principles. It doesn’t mean that they will have to be people outside of government or state for them to be independent. What it simply means is that they must not have participated in the process to classify the information in question. In addition, the Bill provides that the courts will be the final arbiter.
“Finally, the Bill is designed such that it allows for accessing classified information in the public interest using section 46 of the Promotion of Access to Information Act. This allows for public to apply to access such information and make it public, should they so desire, without facing any criminal charges.
“This Bill is meant to repeal an old apartheid legislation of 1982, which has sections that are clearly not in keeping with our democratic dispensation. It therefore cannot be described as ‘worse that the apartheid legislation’ as this indicates a lack of appreciation of the issues we are grappling with. What we are appealing for is a contribution that helps take the debate forward to advance the interest of all the people of this country. Grand standing, spin and self-serving pronouncements add no value to ensuring that our people have access to information balanced with the need to ensure national security,” Dube says.

State Security minister Siyabonga Cwele Friday charged that opponents of the Bill believe South Africa has no legitimate national security to protect. “Clearly, this is far from the truth,” Cwele told MPs. He added the approach adopted by government towards the Bill was “under-written” by the International Covenant for Human Rights and the European Covenant on Human Rights. It was also in line with the African Charter on Human and People’s Rights, the South African Press Association reported him as saying.

Cwele last month said the Bill was a necessary tool that government required to tackle growing challenges such as espionage, information peddling and the protection of critical databases in government through cyber crime. Cwele said the media seemed to hold “preconceived views” about the intentions of the bill and that the government was concerned about the image of the country that had been created by these articles.

Cwele then also rejected calls to introduce the public interest defence into the bill – saying it would allow whistle blowers and members of the media to argue that they had made public classified information for the greater good. Cwele said that citizens were free to use this as an argument to apply to be given access to State secrets, but not as a defence once the information had been leaked. “This means that the State must permit anyone to leak or solicit classified information for public disclosure and then be allowed to prove that the leak was done so as to advance public interest.”

The state insisted on the need for prison sentences of up to 15 years for publishing secret material, as it would serve as a “deterrent to unauthorised disclosure”, he said. It would, however, ask lawmakers to introduce similarly harsh sentences for State officials who abused the classification system, he said on September 17.

SAPA noted that Cwele depicted South Africa as a country riddled with spies and information peddlers that sought to destabilise democracy, undermine national food security and steal valuable commercial information. “Some of their collection targets include profiles of senior government leaders, such as the president, the deputy president, ministers and deputy ministers and the leadership of the ruling and opposition parties. These foreign intelligence agents sought to “unduly influence the evolution of politics and future plans of South Africa,” he added.

Cwele dismissed protest from the Democratic Alliance that his claims smacked of paranoia dating from the Mbeki era. “There is no political paranoia. We are talking about political reality,” he countered. Baseless rumours of political plots have already done severe damage, the minister said, citing the “Browse Mole report” generated during the intra-African National Congress succession struggle between now-President Jacob Zuma and his predecessor Thabo Mbeki, as an example. “Consequently these peddled claims have caused untold disruptions and divisions within the government system, ruling party and its allies and have negatively affected the project of democratisation of the country.”