Parliament wants us to accept a Secrecy Bill that’s only half bad – but the Bill is fundamentally flawed.
One full year ago, on 31 August 2010, the Right2Know campaign launched as a broad-based civil society response to the draconian clauses of the Secrecy Bill. Accepting the need to replace apartheid era secrecy legislation, we made seven simple demands of any law that governs information to ensure our right to access and share information is protected: we called it the 7 point Freedom Test.
Today, after months of wrangling, and despite recent promising developments in the parliamentary deliberations, the Secrecy Bill still fails the Freedom Test.
1. Limit secrecy to core state bodies in the security sector such as the police, defence and intelligence agencies.
ONLY PARTIALLY MET. While the power to classify and declassify information has been limited to the security services, police, defence and intelligence, there is still a ‘back door’ provison for the Minister of State Security to grant this power to any one of over a thousand organs of state that have ‘good cause’. This could include National Keypoints (such as power stations and oil refineries), with the head of those bodies being invested with the same powers to make secrets. This toxic provision has the potential to covertly undermine the hard-won limitations and provide securocrats with powers to politicise any ensuing review or opposition.
Furthermore, the Bill still demands that every organ of state subject ‘valuable’ information to protection from ‘alteration, loss or destruction’. This provision essentially puts the responsibilities of an archivist under the ambit of ‘national security’ and protentially the Minister of State Security. [Note: this briefing paper prepared by Wits law professors suggests the Bill should be split into two different laws because of this structural flaw.]
2. Limit secrecy to strictly-defined national security matters and no more. Officials must give reasons for making information secret.
ONLY PARTIALLY MET. While much work has been done by democrats in Parliament to tighten the definition of national security as the sole justification for classifying information, the final wording still leaves the definitional door fairly wide open. The revised definition of “national security” includes protection against “exposure of economic, scientific or technological secrets vital to the Republic”. This profoundly open-ended provision could include all manner, for instance, the terms of the bank loans to government that financed the Arms Deal.
It also includes exposure of a “state security matter with the intention of overthrowing the constitutional system of government in the Republic”, where a “state security matter” is anything that the security services are dealing with, even their day-to-day operations that may not relate to national security.
3. Exclude commercial information from this Bill.
ONLY PARTIALLY MET. While overt references to ‘commercial information’ have been removed from the Bill, the provision to protect against “exposure of economic, scientific or technological secrets” potentially reintroduces such information to the Bill’s ambit.
4. Do not exempt the intelligence agencies from public scrutiny.
NO. Clause 52 [formerly clause 43] hands out jail sentences of up to 15 years for possessing or sharing any information relating in any way to any aspect of the security services — effectively this protects our spooks from any kind of accountability to the public.
5. Do not apply penalties for unauthorised disclosure to society at large, only those responsible for keeping secrets.
NO. Once information has been leaked at its source, the information should be considered part of the public domain – we should not be criminalised for having access to it or sharing it. Moreover, as it stands, by demanding that any leaked documents be reported to the police or intelligence services [Clause 18], the Secrecy Bill forces journalists to sell out their sources and invites securocrats to target whistleblowers within the administration.
6. Do not criminalise whistleblowers and journalists: the Bill must protect those who release classified information if that information is in the public interest.
NO. Even today, the Secrecy Bill contains only the narrowest possible protection for whistleblowers employed by the state, and none whatsoever for ordinary citizens or journalists who expose a state secret that reveals wrongdoing or corruption in the state. Though the minimum mandatory prison sentences for these offences have been removed, the maximum prison sentences are extraordinarily high (up to 25 years in prison). Effectively, this Bill still threatens to charge whistleblowers on state security matters as foreign spies.
7. An independent body appointed by Parliament, and not the Minister of State Security, should be able to review decisions about what may be made secret.
ONLY PARTIALLY MET. Though there is a provision for a panel that would review the status of classified documents, there is no provision for direct oversight of decisions to classify. This month the ruling party reversed its concession to have a retired judge as an appeal authority to resolve disputes regarding requests for access to classified information.
In summary, the Secrecy Bill still fails the Freedom Test!
The political parties insist that the Bill can be salvaged by tinkering with its clauses, achieving piecemeal, clause-by-clause gains, until the Secrecy Bill transforms into progressive legislation. This undermines repeated calls from the public and civil society for the Bill to be withdrawn and redrafted in earnest, this time with meaningful public consultation and without input from the Ministry of State Security whose powers would be regulated by the Bill.
MPs in the ruling party in particular seem to be under tremendous pressure to harden their positions. Those working on the Bill should not be subject to oversight from officials in the Ministry of State Security, who continue to breathe down parliamentarians’ necks after having pushed the current draft of the Bill into Parliament in the first place.
Effectively, parliamentarians are asking us to accept a Bill that is the result of emergency surgery. Through this process we may get a compromised version of a fundamentally flawed Bill but we can never expect it to produce a truly progressive piece of legislation that advances the democratic project in South Africa. This Bill needs to be withdrawn, and redrafted in its entirety!
Murray Hunter: firstname.lastname@example.org or 072 672 5468
Dale McKinley: email@example.com or 072 429 4086
R2K Western Cape
Nkwame Cedile: firstname.lastname@example.org or 078 227 6008
Hennie van Vuuren: email@example.com or 082 902 1303
Quinton Kippen: Quinton@ddpdurban.org.za or 083 871 7549
R2K Eastern Cape
Ayanda Kota: 078 625 6468