Parliament’s deliberations on the Protection of State Information Bill (dubbed “the Secrecy bill”) drew to a close on 21 November 2012. During the final discussion, the government made some, but not all, of the crucial amendments needed to prevent the bill from eroding the constitutional right to access information that protects South Africa’s democracy.
One important amendment removed clause 1(4), which had stated that the Secrecy bill would take precedence over the Protection of Access to Information Act (PAIA). PAIA allows citizens to request information from government and private bodies. As previously reported by SAHA, this clause would have allowed the government to refuse access to information solely because the information is classified. In effect, this would have introduced a new ground for refusal into PAIA, placing a further restriction on the public's constitutional right of access to information.
During the deliberations, State Security Minister Siyabonga Cwele insisted that clause 1(4) should remain. Eventually, it was agreed to remove the clause. Instead, the preceding clause 1(3) was re-worded to state that in cases of conflict between the Secrecy bill and another law, courts must prefer a reasonable interpretation that avoids a conflict and takes “into consideration the need to protect and classify certain state information in terms of this act.”
Another amendment will allow the Public Protector, the Auditor General, the Human Rights Commission and all other chapter nine institutions to possess classified information. Previously, the Secrecy bill prevented individuals without security clearance from accessing classified information. This would have crippled the ability of these democratic oversight bodies to keep government accountable. The government said it made the amendment in response to pleas from public protector Thuli Madonsela, who said in March 2012 that her office would not be able to function if the bill passed without amendment. She receives secret documents on a regular basis and would risk arrest if the former bill had become law.
The bill was also amended to include more protection for whistleblowers. While whistleblowers can still be jailed for revealing classified information, they may avoid prosecution if they are trying to expose criminal activity or if they are protected by other Acts.
Despite the amendments, there are still serious problems with the finalized version of the Secrecy bill: it criminalises the public for possessing information that has already been leaked, continues to protect Apartheid-era secrets, and includes expansive definitions of National Security that could be used to suppress legitimate disclosures in the public interest. As written, the Secrecy bill also seems to entitle station-level police officers to classify information, because the bill gives this authority to “members of the Security Services as contemplated in chapter 11 of the Constitution.”
Another major problem is that the Secrecy bill contains procedures about declassifying information which conflict with the procedures outlined in PAIA (which applies to both classified and unclassified information). These procedures are more restrictive than PAIA: they allow information holders to refuse access to information merely because a record is classified, and they indefinitely extend the time period for responding to a request for access to information. Under the Secrecy bill, simply possessing classified information appears to be illegal – even pending a request for declassification.
The Right2Know Campaign (R2K) - a nation-wide coalition of people and organizations, including SAHA, protesting the Secrecy Bill and other threats to freedom of information in South Africa - has vowed to continue pressuring the government to replace the Secrecy bill with a law “that genuinely reflects a just balance between the public’s right to know and [the] government’s need to protect limited state information”. R2K will be preparing a legal analysis of the Bill’s final draft in preparation to take their fight to the Constitutional Court.