South African Parliament Approves Secrecy Bill

22 November 2011

South Africa’s parliament Nov. 22 voted to approve the Protection of State Information Bill, moving it closer to enactment and to promised court challenges.

The ruling African National Conference pushed the “secrecy bill” through on a 229-107 vote despite defections by several ANC members. The ANC rejected calls to change the bill, which now  goes before the National Council of Provinces, which has created an ad hoc committee on the bill, but which expected to approve the bill.

The main opposition party, the Democratic Alliance, pledged to continue to fight the bill, as summarized in one media report.

Among other things, the bill criminalizes possession and publication of classified information and punishes the latter with up to 25 years’ in prison, if espionage is involved. For a summary of the key provisions see this Reuters report.

Trip to Court Expected

Challenges in court to the constitutionality of the bill are certain.

“I’m confident that the Constitutional Court will find that the Bill is not consistent with the constitutionally guaranteed right to information and freedom of expression,” Mukelani Dimba, the Deputy Executive Director of the Open Democracy Advice Centre. He explained to FreedomInfo.org:

We are going to argue that the Bill takes away a number of entitlements provided for in the Freedom of Information law which is anchored directly on the constitutional provision. The CC will probably not overturn the whole law but will pronounce on aspects of it that violate sections 16 and 32 of the constitution in that it unjustifiably limits a citizen’s ability to seek, receive and impart information.

The consitutinal challenge options are discussed in this article in The Daily Maverick.

Strong Opposition

The bill was opposed by a broad civil society coalition containing 400 organization, including unions, media organizations and business groups. Also speaking out against it were retired Archbishop Desmond Tutu, the Nelson Mandela Foundation, and writer Nadine Gordimer, who said on the day before the vote that the ANC “is taking South Africa back to the suppression of the free expression of apartheid.”

A floor speech by Lindiwe Mazibuko, parliamentary leader of the opposition Democratic Alliance, was quoted in media reports:

This bill will unstitch the very fabric of our constitution. It will criminalise the freedom so many of our people fought for.

What will you, the members on that side of the house, tell your grandchildren one day? I know you will tell them that you fought for freedom. But will you also tell them you helped to destroy it?

Because they will pay the price for your actions today. Let this weigh heavy on your conscience as you cast your vote.

More than 1,000 protesters gathered outside the parliament building in Cape Town, many wearing black to symbolize “Black Tuesday,” a reference to what is called “Black Wednesday” for Oct. 19, 1977, when the apartheid government banned two newspapers and 19 black consciousness movements. The ANC advised its members of parliament to wear colorful clothing.

The ANC Nov. 24 issued a statement indicating its displeasure with the defections of  members – Ben Turok and Gloria Borman – on the vote.  The party had made a “yea” vote compulsory.

ANC Statement

The ANC issued a statement describing the measure as “a security Bill, not a media Bill, aimed at protecting the national security of the Republic of South Africa. It is firmly in line with best international practice as states have constitutional obligations to protect their people and territorial integrity.”

The ANC rejected calls for a public interest clause to provide a defense for journalists who publish suppressed material exposing government wrongdoing.

Negative Reactions

Reaction to parliamentary approval was criticized afterward by the bill’s opponents. One summary of the continuing opposition was published in The Independent.

The Central Executive Committee of the Congress of South African Trade Unions, a 2 million person organization and a major ANC ally, issued a Nov. 24 statement summarized its objections: stating:

Protection of State Information Bill

The CEC noted with concern that the Protection of State Information Bill has been passed by the National Assembly. The federation wrote to the ANC three weeks ago expressing its concerns with the bill but has received no reply yet. It was agreed to call for urgent bilateral meetings with the ANC and the SACP, which is supporting the bill.

COSATU is unequivocally opposed to acts of espionage or activities that are hostile to the state. However, we are concerned that relevant provisions in the Bill are capable of such broad interpretation that it would have the effect of imposing criminal responsibility on whistle-blowers who disclose information in the public interest.

Through our engagement with the leadership of the ANC and the Ad Hoc Committee, the Bill finally adopted by the Ad Hoc Committee has undergone numerous drafting changes, which some Committee members argue have addressed civil society concerns, but we are firmly of the view that some of our original fundamental concerns remain largely unaddressed:

g. The scope of the revised Bill remains excessively wide, with the potential for just about any organ of state or National Key Point (including private institutions) to be included on the basis of a Ministerial discretion.

Serious definitional and interpretation problems remain Bill, some of which include:

  • The varying degrees of ‘harm’ arising from possession or disclosure of state information which determines the stringency of the security classification and associated restrictions and criminal penalties. The potential for subjective interpretation in the absence of proper guidelines creates ample space for abuse of the process of classification.
  • The definition of ‘national security’ is still overly broad and moreover includes problematic factors, such as the “exposure of economic, scientific or technological secrets” and acts that would have diplomatic implications for “carrying out …responsibilities to any foreign countries and international obligations”. Public interest must necessarily overlap with a correctly construed definition of “national interest, and in many instances should even override the protections for diplomatic relations or against economic harm especially where it is necessary to expose serious irregularities or corruption.
  • It contains numerous provisions that undermine rights of access to information. Quite problematically we note that its provisions state that it will trump the provisions of any other Act of Parliament that contradicts it. This would suppress rights of access to information whether these arise from the Promotion of Access to Information Act or even the Labour Relations Act.
  • It criminalises possession of classified information by an unauthorised person and states that any person who “conspires with .aids, abets, induces or …counsels another person to commit an offence is guilty of an offence”

This would have the consequence of criminalising the obligations that trade union officials and advice offices have to assist whistle blowers with advice or blow the whistle on their behalf where a person wishes to remain anonymous.

The CEC remains convinced that there is a need to introduce a public interest defence that would maintain a balance between the restrictions legitimately placed on state information against disclosures and media publication of such information in the public interest.

Some members of the Ad Hoc Committee had promised that the space has not been closed and that the National Council of Provinces will open the space and make further amendments to the Bill.

The meeting agreed that if we cannot persuade the government to withdraw the bill we will launch an application to the Constitutional Court as we believe that these proposals are unconstitutional.

The South African Municipal Workers’ Union of COSATU issued this statement:

Sadly more than the media, the protection of Information Bill “Secrecy Bill” will affect the poor/grass root communities.

Comrade Jacob Zuma said during his election campaign walkabouts in poor communities, he now understood what the service delivery protests were really about. Our people become most frustrated and angry when the information that should have been made available to them, to make informed decisions, was denied or hidden away from them.

Those engaged in the hundreds of service delivery protests that continue to take place every year, state time and time again, that an absence of information about the services they should be receiving and the abuse of ratepayers money – fuels their anger more than anything else. If this bill is passed in its current form, there are likely to be more service delivery protests not less.

There is likely to be more corruption not less, and there is likely to be more disenchantment with our democratic society and its institutions. This is bad news for our still fledgling democracy, and for accountable and responsive Local Government. Our society – especially grass root communities – need more empowering information, not less!

The poor/grass root communities will suffer dearly if the “Secrecy Bill” becomes law, there would be no way to demand the service delivery and corruption free local Government that we all deserve.

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