South African Assembly OKs Protection of Information Bill

26 April 2013

South Africa’s National Assembly April 25 approved a modified, but still contentious, Protection of State Information Bill.

The bill, three years in the making, passed on a vote of 189-74, with one abstention.

Opponents have long indicated that they will test its constitutionality in court and reiterated their intention to do so.

“The fight is not over. The fact is that this bill is still flawed,” Democratic Alliance parliamentary leader Lindiwe Mazibuko said during the debate, according to the report by the South African Press Association.

“Mazibuko agreed that the changes made for a better bill but insisted it was unconstitutional because it would allow Parliament to interfere with record keeping by provincial archives,” SAPA reported.

Among the changes made during long development of the bill was the addition of a clause to protect whistle-blowers who disclose classified information to reveal a crime, a key demand of those who opposed the original bill.

African Christian Democratic Party MP Steve Swart, a critic of the bill, said the changes made to the bill meant it should not called by its original nickname, “the secrecy bill.”

The African Christian Democratic Party continues to object that the burden of proof for the state should be stricter in light of the maximum jail sentence of 25 years.

Opponents contended that the bill will still allow for too much state information to be classified.

State Security Minister Siyabonga Cwele said the continuing objections are about “policy preferences which may be portrayed by others as constitutional concerns.” 

Committee passage occurred on April 22. (See previous report.)

Right2Know Statement

Before passage of the bill, the Right2Know campaign issued a statement:

The Secrecy Bill only has narrow protection for whistleblowers and public advocates (not a full Public Interest Defence) that excludes a range of matters in the public interest like shady tendering practices or improper appointments within key state agencies. This half-measure fails to acknowledge the urgent need to address South Africa’s whistleblower crisis — as well as the global abuse of national security laws to protect state interests against the scrutiny of citizens.

 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” and other offences not covered by the proposed Public Interest Defence.

People can be charged with “espionage”, “receiving state information unlawfully” (to benefit a foreign state), and “hostile activity” without proof 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.

While the Bill limits the number of agencies and people that can classify, it still gives powers of the Minister of State Security to give classification powers to other state bodies (and junior officials) without adequate public consultation.

The Secrecy Bill still lacks of a Public Domain Defence, effectively criminalising the population at large when classified information becomes public, rather than holding those responsible for keeping secrets accountable.

The Bill still contains draconian sentences of up to 25 years in jail.

The procedure permitting applications for the declassification of classified information is in conflict with the PAIA – despite commitments from the NCOP to the contrary. The body established to review this process – a Classification Review Panel – is not sufficiently independent and the simple possession of classified information appears to be illegal even pending a request for declassification and access.

Information that has been made secret in terms of old and potentially unconstitutional laws and policies will remain classified under the Bill pending a review for which no time limit is set. This includes information classified under the apartheid era Protection of Information Act of 1982 and the government policy adopted in 1996, the Minimum Information Security Standards.

If passed the Bill would add to the generalised trend towards secrecy, fear and intimidation that is appearing in South Africa today.

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