The Protection of State Information bill, more commonly known as the ‘Secrecy Bill’, is back before the National Council of Provinces today, where it will be debated. Leading campaigner against the bill in its current form, the Right2Know organisation, has developed a pamphlet that outlines which issues remain in the bill that threaten South Africa’s democracy.
Public interest defence too limited
You should be allowed to reveal classified information if you can show that it’s something the public should know (something “in the public interest”). But the current ANC proposal for a limited public interest defence only protects you if you can show that the disclosure “reveals criminal activity”. This means that vital information about the abuse of power, tender sleaze or other wrongdoing will remain under wraps.
And there are serious loopholes: As the defence does not apply to widely enough, a whistleblower, journalist or activist may still be prosecuted under the “espionage”, “receiving state information unlawfully” or “hostile activity” clauses (36-38), or if the information was classified by the State Security Agency (clause 49).
Ordinary people made gatekeepers
Only those responsible for keeping secrets should be prosecuted for leaks. But the Bill criminalises ordinary members of the public for possessing and sharing classified information, even if they are not spies or have no intent to harm national security (clauses 43 and 44). Should we have our own ‘Cablegate’, the state may prosecute every person who downloads the secret cables from the internet; every person who passes them on; and every journalist or blogger who writes about them.
Other democracies, including those with regressive secrecy laws, live with the fact that classified information, once leaked, cannot be made secret again. This Bill will criminalise every subsequent disclosure.
Veil of secrecy over SSA
The “prohibition of disclosure of state security matter” offence (clause 49) makes it a special offence to receive, possess or disclose information classified by the State Security Agency (SSA). Even the limited whistleblower and public interest protections elsewhere in the Bill do not apply.
The definition of a “state security matter” (clause 1(1)), which underpins this offence, is also dangerously overbroad: Not only does it include any matter “dealt with” by the SSA, but also its “functions”. The combined effect is to draw a complete veil of secrecy over the organisational being and work of the SSA.
Loopholes in espionage offences
This concern relates to the three offences of “espionage” (clause 36), “receiving state information unlawfully” (to benefit a foreign state; clause 37), and “hostile activity” (to benefit to a “hostile group” or “prejudice to the national security”; clause 38).
The state will not have to prove that an accused intended to benefit a foreign state or hostile group, intended to harm the national security for them to be convicted of espionage or one of the related offences. It will only have to prove that the accused knew this would be a “direct or indirect” result. If these clauses are not changed to put the word “intent” where it belongs, it will allow the malicious prosecution of whistleblowers, activists or journalists who wanted no more than to expose crime or corruption.
Although minimum sentences have been removed in the proposed ANC amendments to give the courts more discretion, the maximum penalties (chapter 11) remain extremely harsh – up to 25 years in jail.
Particularly worrisome is that the penalty for “simple disclosure” (clause 43) – that is unlawful disclosure without aggravating circumstances such as that it was for a foreign state – now also attracts up to 25 years in jail.
Information classified too easily
When the Bill becomes law, only the security services and related bodies will be allowed to classify information. However, the minister of state security will be entitled to include other state bodies only “on good cause shown” (clause 3). This is not a strong enough safeguard, meaning the power to classify may become pervasive.
And in spite of assurances that the power to classify will be given only to sufficiently senior officials (clause 13), a loophole means that even junior members of the security services will be allowed to classify information until and if his or her boss decides otherwise.
Accessing classified information difficult
In a procedure similar to the Promotion of Access to Information Act (PAIA), the Bill allows applications for access to classified information (clause 19).
This clause mandates declassification and disclosure where the public interest in the exposure of a substantial contravention of the law, criminal misclassification or an “imminent and serious public safety or environmental risk” outweighs the harm that will arise from disclosure. But it is completely silent as to what should happen when none of these exceptional circumstances are met. This is exacerbated by the fact that the Bill appears expressly to override PAIA (clause 1(4)).
The effect is that, unlike now, state entities will be entitled to refuse access to classified information simply because it is classified, and not because there is a valid underlying reason for its protection from disclosure.
Further problems include that if you obtain classified information and apply for its declassification, you will have to return it even before you make the application (clause 15); that the Classification Review Panel (chapter 7) is not sufficiently independent from the minister of state security; and that this panel cannot be approached by members of the public, meaning that slow and expensive court procedures are the only option when a department refuses to declassify.
Unconstitutionally classified info remains secret
Information classified under unconstitutional laws and policies (including from the apartheid era) will remain classified under the Bill pending a review for which no time limit is set (clause 44).
Academics, journalists, and many activists will become instant criminals for having access to apartheid-era files revealing human-rights abuse. The easy solution would be to decriminalise the possession of pre-Bill records (even if disclosure is criminalised, which may be problematic in itself), which would allow time for declassification applications.