South Africa Coalition Critical of POIB as Debate Nears End

29 August 2011

Work on the Protection of Information Bill by the South African parliamentary committee is nearing conclusion, with some compromises being made, but the Right2Know Coalition says the bill “still fails the Freedom Test.”

Deliberations are expected to continue this week, beginning with debate on whether to allow a public interest defense, a major coalition demand.

The committee chairman said Burgess set a goal of finalizing the bill by Sept. 2 and putting it to a vote in the National Assembly before Sept. 15.

On Aug. 30, the committee is expected to discuss the lack of a defense for journalists and whistleblowers, according to an account by the South Africa Press Association. “This issue threatens to trigger a court challenge of the legislation,” according to the story.

“It is the most important outstanding issue and we need to find agreement on the circumstances under which classified information can be disclosed,” said David Maynier, of the Democratic Alliance, according to the SAPA report. But ANC member Vytjie Mentor was quoted as saying that such a clause would mean “writing loopholes into the law.”

During the week of Aug. 19, the ANC made some concessions: to restrict the power to classify information to the intelligence and security services and narrow the definition of national Security.

The power to classify and declassify information has been limited to the security services, police, defence and intelligence, but a ‘back door’ provision would allow the Minister of State Security to grant this power to any one of over a thousand organs of state that have ‘good cause,’ ” the Coalition objected.

After abandoning a suggestion that the term “national security” would be undefined, the ANC adopted language that “still leaves the definitional door fairly wide open,” the Coalition observed. The revised definition includes protection against “exposure of economic, scientific or technological secrets vital to the Republic.”

The definition “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,” objected the Coalition.

The Coalition observed the MPs from the ruling African National Congress “seem to be under tremendous pressure to harden their positions” and said the bill “needs to be withdrawn, and redrafted in its entirety!”

Coalition Issues Evaluation

The coalition issued a statement saying the bill as it stands “is fundamentally flawed” based on its seven-point test.

In specific, the Coalition wrote:

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 potentially the Minister of State Security.

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.

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 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.

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