Reception Lukewarm for ANC Compromises on Secrecy Bill

14 May 2012

The ruling African National Congress in South Africa has proposed modifications to the controversial Protection of State Information Bill, but critics say they do not go far enough.

The Right2Know Coalition that opposes the “secrecy bill” on May 11 called the ANC proposals “a small but important victory” but added that “the moment for celebration isn’t here yet.”

ANC members of the National Council of Provinces (NCOP) ad hoc committee on May 10 proposed that section 43, which criminalizes the release of classified information, contain an exception for cases where “such disclosure reveals criminal activity.” Those charged with disclosure could argue that the information was wrongly classified to begin with. The committee said its deliberations will extend until the end of June.

The ANC also moved narrow the scope of section 49 to make it apply to only the disclosure of classified state information.

The ANC proposal can be found here. For official documents summarizing the public hearings and notes on the May 8 meeting see this page on the Parliamentary Monitoring Group site.  Notes on May 9 meeting are here.

Broader Exemption Sought

The proposed amendments “would improve the badly flawed whistleblower protection,” according to the R2K Coalition, but more changes are needed. The summary of its statement continues:

In this formulation, those exposing state secrets would face up fines or up to 5 years in prison unless they were protected by South Africa’s existing (though inadequate) whistleblower protection laws, or unless the exposure revealed unlawful activities or was made to fulfil responsibilities handed down by law.

However, this protection only applies to the offence in clause 43, and has not yet been made applicable to offences contained in clause 36, 38, and 49 – offences which carry penalties of between 5 and 25 years and currently have no public interest defence. In other words, this protection is an improvement, but is not meaningful until it is extended to all offences contained in the Bill.

In the ANC’s proposed amendments, the crimes of “espionage” and “hostile activities are still sufficiently broad and far-reaching that anyone who exposes information that could “directly or indirectly” benefit a foreign state face severe prison sentences – up to 25 years. This still incriminates journalists and whistleblowers who are acting in the public interest, even if it may be intended to apply only to true acts of espionage. Two improvements to these sections have been to remove prescribed minimum sentences, and to amend the offences so that one is only guilty of a crime if one “knew” their disclosure may benefit a foreign state.

The ruling party has not budged on clauses 15 and 44, which make mere possession of classified information a crime. Even if the document were already in the public domain, one would face up to 5 years in prison for not immediately delivering the document to a police station.

The Department of State Security is still given complete protection from any kind of state security – in terms of clause 49, there is absolutely no protection for receiving, retaining or exposing information that has been classified by this department. Thus, the complete veil of secrecy over the work of spooks remains intact.

In addition, beyond the proposed amendments to the Secrecy Bill’s offences and penalties, the committee has not addressed in any meaningful way the many unresolved issues in the rest of the Bill, as raised in the public hearings.

Reactions Guarded

A report on the development by the South African Press Association quotes the South African National Editors’ Forum as calling the proposals “a step in the right direction.”

The African People’s Convention (APC) welcomed the “bold move.” The Congress of the People (Cope) chief whip in the NCOP, Dennis Bloem, said: “This is a small but important victory. The attempt by government to muzzle the media and punish whistleblowers to conceal scandals and corruption has already been dealt a blow.”

A detailed article penned by Stefaans Brümmer, who has been involved in the campaign against the Bill both as managing partner of the M&G Centre for Investigative Journalism and a member of the Right2Know Campaign, begins, “There are still snags in the current secrecy Bill which need to be overcome before the messy democratic success is turned into good law.

Regarding the proposed public interest defense, he writes:

The exemption states — or attempts to state — that one cannot be penalised for disclosing a classified record if the disclosure reveals criminal activity or if the record should not have been classified in the first place.

But there are significant hitches:

The exemption has been added to what may be called the “simple disclosure” offence. But there is a parallel “disclosure of a state security matter” offence which is not covered. The latter offence relates to the classified documents of the State Security Agency (SSA). The effect will be that whistleblowers, journalists and activists wanting to blow the whistle on corruption and other forms of crime will be fine if they do so at the hand of documents classified by the police or military, but not documents of the SSA. This is irrational and, one hopes, an oversight.

There are circumstances other than the exposure of criminal activity that should also be exempted in the public interest, to whit when “an imminent and serious public safety or environmental risk” needs to be exposed. Those exact words appear elsewhere in the Bill, under the provisions to apply for a record’s declassification, so one would hope that the ruling party and ministry should have no principled objection to include those in the exemption. Again, a matter of drafting.

The second half of the exemption, which appears to shield one from being penalised from exposing a record which should not have been classified in the first place, is so unintelligibly worded as to raise doubt that it will achieve its purpose. A disclosure is exempted if it reveals “criminal activity for ulterior purposes listed in section 14 and section 47”. Those two sections deal with the conditions under which records may and may not be classified, and criminalising wrongful classification. But what on earth does “criminal activity for ulterior purposes” mean?

The risk remains that a whistleblower, journalist or activist who discloses a classified record with the purpose of revealing corruption or other forms of crime may be maliciously prosecuted under the espionage or related sections of the Bill, where again no public interest defence or exemption is available.

He also goes into detail on the offenses for which there would be no public interest defense:  “espionage”, “receiving state information unlawfully” (for the purpose of espionage) and “hostile activity” (similar to espionage, but where the beneficiary is for example a terrorist organisation rather than another state).

The Democratic Alliance welcomed the amendments, too, but said “the ANC’s amendments still do not go far enough.”

The DA remains concerned about areas of the bill such as:

  • The definition of “national security”; and
  • The sections pertaining to almost all offences, such as the possession and disclosure of classified information.
  • The DA will continue to push for a full public interest defence clause to be included in the bill, and for other necessary amendments to be made.
  • The committee’s decision yesterday to extend its lifespan from May 17 to June 30 is another important victory. This follows the submission of a formal request by DA Leader in the NCOP Elza van Lingen to the Chairperson of the NCOP to have the reporting deadline extended.

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