South Africa: What is the Protection of State Information Bill?

6 December 2012

By Nelago Amadhila

Amadhila is a political analyst with the consulting firm Political Analysis South Africa, which published this synopsis on Dec. 6. Reprinted with permission.

The ANC drove final amendments to the Protection of State Information Bill through the National Council of Provinces on Thursday 29 November 2012. The amended bill was adopted by 34 votes to 16 and will go to the National Assembly in 2013, where it is most likely to be passed.

Opposition parties have however threatened to lodge an application with the Constitutional Court to overturn the legislation if the bill is passed. The Right2Know campaign has also threatened legal action. Opposition parties and activists have also expressed concern that the bill is in conflict with the Promotion of Access to Information Act (PAIA).

According to the Ministry of State Security, the Protection of State Information Bill seeks to advance the public interest by protecting certain classified information held by the state, that if it became known to adversaries, would prejudice state programmes and hinder its ability to perform its duties. The bill also protects valuable information held by organs of state against unlawful alteration, destruction or loss in order to prevent hardship experienced by our people, who may as a result be denied services they are entitled to.

The bill states that “ the decision to classify information must be solely based as set out in the act; (2) (a) Classification of state information is justifiable when it is necessary to protect the national security (b) Classification of state information may not under any circumstances be used to conceal … corruption, unlawful act or omission, incompetence, inefficiency or administrative error…”. Checks and balances to prevent any abuse of power in the classification system have been put in place which includes the oversight by an independent Classification Review Panel, by the Minister of the relevant department, by the judiciary, the Inspector General of Intelligence, the Joint Standing Committee on Intelligence and Parliament.

The bill also criminalises foreign spies who steal state secrets, so that the state can improve its competitive edge in order to advance their interests and development. The bill also limits secrecy and develops a transparent system of declassification where there are stringent criteria and timeframes for classification, reclassification and declassification.

The government also addresses concerns from opposition parties that state that the bill is in conflict with the PAIA that gives expression to the constitutional right to access of information, and hence with the Constitution. Opposition parties and other groups have expressed that the information bill is unconstitutional, because is in conflict with the PAIA, but the government states that the protection of classified information to protect national security is mandated by the Constitution, and that the bill and the act do not present opposing legislation. There are two different pieces of legislation with two different objectives, in that PAIA is an Act to promote access to information whereas this Bill seeks to protect certain state information.

Opposition parties and activists are also concerned that the bill will be used to cover up crime and corruption by government officials who risk exposure. Critics have also stated the bill imposes excessive prison sentences and lacks a proper public interest defence clause to protect the media and whistleblowers. The bill has been redrafted since it was introduced in 2010 and heavy opposition forced the government to amend contested provisions, such as those imposing minimum prison sentences for releasing secret documents and enabling certain state entities to classify information. Opposition parties are still against the bill because of certain clauses and that the ANC had only partially addressed concerns. Some terms and clauses still remain as unclear loopholes.

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