This contentious piece of legislation has been the subject of numerous submissions to the Ad Hoc Committee on Intelligence Legislation and has been roundly criticised for failing to meet the test of constitutionality.
The Bill is intended to replace the Protection of Information Act of 1982 and to place a great deal more information in the public domain. Regrettably, doubts exist as to whether the Bill, in its current form, will achieve its objective.
The current Act has been on the statute books for over a quarter of a century and was an effective mechanism to hide many of the evils of the Apartheid State and to entrench the powers of the executive and security apparatus of the government of the day. It is characterised by sweeping powers, a very wide ambit and a general disregard for human rights.
It is precisely because of the nature of the Act that one must be circumspect in the appraisal of the new Bill. The Ministry of Intelligence has over the past 18 months been engaged in the formulation of this Bill. Despite the fact that the Ministry has had a considerable period of time to produce the Bill, there appears to be an unseemly haste to put in place a Bill which is riddled with inconsistencies and problematic provisions.
The professed objectives of the Bill sound noble and a sincere attempt to move from a presumption of secrecy to a presumption of openness. It is commendable that the departure point of the Bill was the acknowledgement that it must pass constitutional muster, place the protection of information within a transparent and sustainable legislative framework, and promote the protection of information within an open and democratic society without compromising the security of the Republic.
The question that arises is whether the Bill actually attains these objectives or whether it merely pays lip service to the fundamental values upon which our constitutional state is founded. Is this yet another case of the devil being firmly entrenched in the detail of the Bill? The problem facing civil society is that the objectives of the Bill have simply not been met.
The crux of the problem regarding the Bill is the vastness of the term “national interest” which forms the basis upon which sensitive information may be classified by any organ of state, including a facility or installation declared as a national key point, and any natural or juristic person upon which the Bill places obligations. Included in the definition of national interest are “all matters relating to the advancement of the public good”.
This encapsulates virtually everything in contemporary society. Any action taken by the state could conceivably be justified as being in the national interest and hence classifiable. The classification of such information would be subject to a “reasoned and rational approach” and the “intrinsic value test”, but since there is no independent body to oversee the process, a fundamental flaw exists. No test which is purely internally monitored can hope to meet the requirements of transparency which are essential components of meeting the overall objective of a presumption of openness.
A body Ã¢Â€Â“ for example an ombudsman’s office Ã¢Â€Â“ would need to be appointed by the representatives of civil society in order to ensure adequate checks and balances. In essence, this requirement is simply an acknowledgement of the age-old question of Juvenal: “Who shall guard the guards?”
The absence of external monitoring could also lead to abuse. For example, the operator of a national key point Ã¢Â€Â“ such as an oil refinery Ã¢Â€Â“ could avoid publication of adverse material by simply classifying it as top secret. This would prohibit fair and accurate reporting on incidents occurring at the national key point.
The inability of the press to report properly under such circumstances severely impacts on freedom of expression and the public’s right to receive information. 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 uncertainly surrounding access to information. It is interesting to note that PAIA provides for the disclosure of information that would usually be protected from disclosure if the public interest in the disclosure of the record clearly outweighs the harm contemplated by the specific provision in PAIA.
The Ministry has elected not to include a similar “public interest” clause in the Bill to protect journalists and investigators in the vital function that they fulfill in our democracy. This omission is clearly indicative of an attempt to curtail criticism and investigation of wrongdoing and corruption within organs of state.
Furthermore, a large number of requests for information and the declassification could be avoided by narrowing the scope of the Bill. This would result in considerable savings for the state and significantly lighten the administrative burden under which the administration is labouring. It would also advance the transparency of the information regime, whilst still protecting information that truly requires it.
The Bill introduces severe penalties of up to five years’ imprisonment for the disclosure of classified information and the failure to report the possession of such information. A journalist or investigator, who quite rightly pursues the truth, faces the prospect of a complex legal battle with attendant costs, personal discomfort and intimidation. This cocktail is a powerful disincentive to any diligent investigator seeking to provide truthful comment to the public.
It is cold comfort to purport that prosecutions will not be undertaken lightly. Acquittal after proving a bona fide investigation on the part of the investigator does not provide adequate relief. What would be appropriate in accordance with the principles of effective administration of justice would be to place the onus of proving the absence of a bona fide public interest on the state.
The discrepancy between the penalties applicable to state employees charged with wrongful classification and the penalties applicable to a investigator charged with knowingly being in possession of classified information demonstrates the sentiments of the Ministry. While the former is punishable by a maximum of three years’ imprisonment, the latter attracts a sentence of up to five years.
mce_keep=”true”It is equally disturbing that the Bill proposes automatic declassification of classified information which was classified before 10 May 1994, but makes no automatic declassification applicable to classified information which has been part of the post-apartheid regime.
In this respect the Bill provides for protection for a 20-year period from the date of the Bill’s promulgation and the possibility that this protection could be extended for a further 10 years thereafter. It is even possible that information could be protected beyond the 30 years, in instances where the Minister is of the opinion that harm to a person or persons, or a life-threatening situation may arise.
It is entirely possible that the Minister could invoke these powers to maintain secrecy where controversial situations exist. One forms the distinct impression that the Ministry, while prepared to unveil past wrongs, is armouring itself against the unveiling of the misdemeanours of the present government.
Perhaps the most insidious provision in the Bill is section 30(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. R
This conundrum will certainly be tested by the courts. It appears unlikely that this provision will survive judicial scrutiny, but in the interim it poses a severe obstacle to investigative reporting.
While we must applaud the notion that the Bill set out to be constitutional, too many gremlins remain. One is left with the impression that old habits die hard and that the Executive’s obsession with control has won out over the attempt by the drafters to manufacture a truly novel and fair Bill.
Melissa Moore is the head of the Freedom of Expression Institute (FXI) Law Clinic.
This piece first appeared in The Media magazine (August 2008).