South African Coalition Says Not to Rush Secrecy Bill

7 September 2012

The RighttoKnow Campaign in South Africa has urged the Ad Hoc Committee on the Protection of State Information Bill (NCOP) not to rush action on the secrecy bill and to address seven areas of concern.

The Sept. 5 letter acknowledges “the stand the above-mentioned committee has taken against the State Security Agency and other securocratic elements pushing draconian aspects of the Protection of State Information Bill (POSIB) popularly known as the Secrecy Bill.”

“We also acknowledge the stand you have taken in defence of the right of everyone in South Africa to We want to applaud the consensus you have reached in striking down the unacceptable special protections proposed for the Department of State Security and proposed minimum sentences, as well as excluding municipalities from classifying powers. In addition we note that the committee has given an in-principle commitment that the provisions of the Promotion of Access to Information Act (PAIA) will take precedence over POSIB.”

Work on the bill is expected to continue this month. (See previous report.) 

Another commentary on the bill, by the South Africa History Archive, says reports that an amendment to clause 1(4) of the bill will protect the right to information under the Promotion of Access to Information Act (PAIA) “are inaccurate.”

Seven Continuing Issues Seen

Seven critical issues remain the RTK Campaign said, beginning with the need for a “public domain defense.”

“Only those responsible for keeping secrets should be prosecuted for leaks. Rather than securing sensitive information at source, the Bill visits the responsibility, and severe consequences, on “any person” who possesses (clause 44) or discloses (clause 43) classified information – i.e. on society at large,” according to the letter. “This is the equivalent (should South Africa have its own “Cablegate”) of the state prosecuting each and every person who downloaded the secret cables from Wikileaks; every person who passed it on to another; and every journalist or blogger who wrote about it.”

“Other democracies (even those with regressive secrecy laws),” the letter continued, “live with the fact that classified information, once leaked, cannot be made secret again. This Bill will criminalise every subsequent disclosure.”

The current proposal by the African National Congress party includes a partial public interest defense, the RTK coalition said.  ”It provides that a person accused of disclosing classified information (clause 43) would not be guilty should he or she show that the disclosure “reveals criminal activity, including criminal activity for ulterior purposes listed in section 14 and section 47 of this Act”. (Clauses 14 and 47 deal with the criminal misclassification of information by a classifying authority.)”

Calling this “a welcome concession,” the letter explains that “severe problems remain:

The clause sets the bar too high: only exposure of ”criminal activity” is permitted. What of shady tendering practices or improper appointments within key state agencies, or when the misclassification was not criminal (e.g. the classifier acted in good faith, or the public interest in the information only arose after it was classified)?

The clause is out of step with existing Promotion of Access to Information Act (PAIA) guidelines for public interest access, where an “imminent and serious public safety or environmental risk” also mandates disclosure.

The risk remains that a whistleblower, journalist or activist who discloses a classified record with the purpose of revealing corruption or other criminal activity may be prosecuted under the “espionage”, “receiving state information unlawfully” or “hostile activity” offences (clauses 36-38), which again are not covered by the proposed defence (see “Close loopholes in espionage offences” below).

Draconian Sentences

“Although minimum sentences have been removed in the proposed amendments to give the courts more discretion, the maximum penalties (chapter 11) remain extremely harsh – up to 25 years in jail,” according to the letter.

“Particularly worrisome is that the penalty for “simple disclosure” (clause 43) – that is unlawful disclosure without aggravating circumstances such as that it was for a foreign state – now also attracts up to 25 years in jail.

The Coalition also wrote:  “When the Bill becomes law, only the security services and related bodies will be allowed to classify information. However, the Minister of State Security will be entitled to include other state bodies only “on good cause shown” (clause 3). This is not a strong enough safeguard, meaning the power to classify may become pervasive.”

“And in spite of assurances that the power to classify will be given only to sufficiently senior officials (clause 13), a loophole means that even junior members of the security services will be allowed to classify information until and if his or her boss decides otherwise.

The bill permits applications for the declassification and subsequent access to classified information (clause 19), the Coalition said in its letter. It continued:

 This clause commendably mandates declassification and disclosure where the public interest in the exposure of a substantial contravention of the law, criminal misclassification or an “imminent and serious public safety or environmental risk” outweighs the harm that will arise from disclosure. But it is completely silent as to what the outcome should be when none of these exceptional circumstances are met. This is exacerbated by the fact that the Bill will expressly override any other access legislation – including, it appears, PAIA itself.

This means in turn that PAIA – which has its own built-in protections for sensitive information – will not assist in the potential declassification of classified information. The effect is that, unlike now, state entities will be entitled to refuse access to classified information simply because it is classified, and not because there is a valid underlying reason for its protection from disclosure.

The campaign further urged the closing of loopholes regarding potential espionage charges. “In spite of improvements to the wording, the state will not have to prove (because the word “intentionally” is misplaced) that the accused intended to benefit a foreign state or hostile group or prejudice the national security; only that the accused knew this would be a “direct or indirect” result,” the group said.

“This leaves the door wide open to the malicious prosecution of whistleblowers, activists or journalists who want to expose crime or corruption, but who have to admit that there might be some collateral damage to the national security or a benefit, however remote, to another state or hostile actor. Unlike the simple disclosure offence (clause 43), these clauses do not provide any whistleblowing or even partial public interest defence.”

Finally, the coalition expressed concern “that information classified under old and constitutionally problematic legislation and policies will remain classified under the bill pending a review for which no time limit is set.”

“Academics, journalists, researchers and many activists would become instant criminals for hanging on to troves of apartheid-era files revealing human-rights abuse,” the letter states.

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