Despite gathering dust on the President’s desk for the past year, the Secrecy Bill remains a threat to the right to know and should be scrapped
The Protection of State Information Bill (the Secrecy Bill) now awaits the President’s signature. Despite over a hundred minor and major tweaks spanning over thirty drafts, if signed, the Secrecy Act would still be a threat to the right to know. Though the President referred the Bill back to Parliament briefly in September 2013, it was literally only to correct typographical errors, and Parliament re-approved the Bill soon after.
There have been a range of progressive changes to the Bill since it was tabled in 2010 (see box below). But many of the underlying problems are still there:
- An open-ended definition of national security which encourages over-classification (including, for example, classification of undefined “economic” secrets).
- The Bill makes it a crime not only to leak classified information, but merely to possess it. This means that even if the information is already in the public domain, it would be a crime to have access to it.
- Although when the Bill is signed into law, only the security cluster and cabinet will get ‘secrecy’ powers, the Minister of State Security can extend this function to any other organ of state except municipalities.
- Classification decisions do not need to be public, creating a high risk of over-classification.
- The Bill retroactively protects all documents classified under the previous legislation, including apartheid-era records, with no deadline for declassification.
- There is no public interest defence in the law, providing only limited protection for whistleblowers. (For example, the law exempts a whistleblower from prosecution if they disclosed outright criminal conduct, but provides no protection for exposing shady tendering practices, improper appointments or flawed policy decisions).
- The Bill’s espionage offences, which criminalise “receiving state information unlawfully”, are so widely drafted that they could punish researchers, activists, whistleblowers and journalists who disclose classified information in the public interest. The penalty includes jail sentences of up to 25 years.
In sum, the Bill in its current form must be scrapped and redrafted to reflect the values of openness and transparency that underpin our Constitution.
But we know that even without the Secrecy Bill in place, there is already over-classification across many government departments (see 2013 Secret State of the Nation report). However, this only came to light because of a one-time disclosure by government departments to Parliament in 2011. It should be a regular reporting requirement.
Secrecy Bill: What’s been fixed?
- Scope has been limited mainly to the security cluster. Municipalities are excluded, though any other state body can ‘opt in’;
- Now has limited whistleblower protection (falling short of what’s needed);
- Narrower, although still open ended, basis for classifying information;
- Most commercial information is excluded;
- No longer overrides PAIA;
- Replaces the apartheid secrecy law which is even broader and more vague.