On 12 September 2013, President Jacob Zuma in his address to the nation, confirmed what a lot of Secrecy Bill critics have been saying; the Secrecy Bill does not pass Constitutional muster.
In his letter to Speaker of Parliament, Mr. Max Sisulu, President Zuma referred the Bill back to legislature saying "sections 42 and 45, lack meaning and coherence, consequently are irrational and accordingly unconstitutional."
His decision has been long argued for, and welcomed by SAHA and many others who agree that the Bill has a long way to go before it should be passed into law. The two sections cited by the President are just the tip of what needs to be improved with the Bill. For example, the section in the Bill permitting applications for the declassification of classified information is in conflict with principles of transparency in the Promotion of Access to Information Act, 2000 (PAIA).
While PAIA promotes and provides the right to access information held by a public body and a private body in order to protect or exercise a right, the Bill allows the classification and monitoring of information to be centralised by the State Security Agency (SSA). The centralisation of information is problematic as the body is expected to be the only legal entity to make decisions on accessing, retaining and disseminating information leading to potential delays while bodies seek declassification of records. In summary the Bill puts the pillars of access to information and in particular PAIA, including transparency, accountability and good governance at risk.
Already the culture of secrecy that pervades many public bodies, a reliance on apartheid era legislation and application of PAIA's security exemptions leads to the withholding of information, without a ‘reviewer' in the form of a watch dog body to oversee the declassification by state security, there is a real risk that this secrecy culture will continue, or worsen.
Currently, public bodies are struggling to stick to PAIA timelines and one of the reasons is the lack of resources and proper systems to ensure the smooth administration of PAIA. The Secrecy Bill does not address that issue, as it only cites timelines similar to those of PAIA, which are already not being adhered to. The addition of another level of red-tape will have implications on timelines prescribed by PAIA, an issue the Secrecy Bill is likely to make worse.
Additionally, the Bill would make it a criminal offence, to obtain information in any other way deemed by the security agency as being improper/ unlawful. The Bill does not speak to exemptions to allow release of documents in the public interest. Instead it criminalises whistle-blowers who in many instances expose corruption and maladministration, and proposes heavy sentences, which will discourage whistle-blowing.
SAHA therefore strongly encourage Parliament to fully engage fully with the Bill and make amendments that are in line with the South African Constitution and in particular section 32 which provides for the right of access to information.