06 June 2012

You could be imprisoned for possessing the Department of State Security presentation on the secrecy bill

Possessing a copy of the presentation of the Department of State Security to Parliament on the Protection of State Information Bill (commonly known as the secrecy bill) could lead to a jail term of up to 10 years if that bill were enacted.

The presentation to the Ad Hoc Committee of the National Council of Provinces by the Acting Director General of the department, Dennis Dlomo, on 6 June 2012 was marked ‘confidential'. Under the bill, the possession and disclosure of information classified as confidential exposes an individual to criminal sanctions.

Possessing a copy of the presentation and failing to return it to the South African Police Service could see you spend up to 5 years in prison. Sharing it with a friend, members of your community or posting it on a website would constitute ‘disclosure' of the information and may earn you an additional 5 years imprisonment.

Despite the prospect of receiving a sentence equivalent to that for many violent crimes, the bill does not offer any opportunity for someone charged with those offences to defend their decision to retain or disclose the information.

The wrongful classification of information is not a defence to criminal charges. Therefore, it doesn't matter that the presentation does not meet the test for classifying information as confidential under the bill, you could still be prosecuted and jailed for its possession based on its confidential marking.

Furthermore, there is no public domain defence in the legislation. Therefore, even though the information was presented at a session of the committee open to the public and is available on the website of the Parliamentary Monitoring Group, you could not defend yourself against criminal prosecution on the basis that the document has lost its confidential nature because it is available in the public domain.

Despite the illogical operation of these provisions of the bill, the department has rejected calls by the public and proposals by members of the Ad Hoc Committee to include amendments that would provide some protection from prosecution to members of the public who expose incorrectly or unlawfully classified documents.

While it may be argued that the National Prosecuting Authority would not prosecute in such instances, the example demonstrates the extent to which the bill leaves the classification of information, and the very serious consequences that flow to members of the public from that classification, open to the discretion of public officials. Broad discretionary powers mean opportunities for abuse of that power.

These opportunities for abuse are just one of the reasons experts and members of the public have called for amendments to the bill. If the necessary amendments are not implemented by the National Council of Provinces the bill is certain to be challenged in the Constitutional Court.