South Africa Sets Stage to Implement Secrecy Law

13 May 2015

The South African government appears to be making plans to implement the so-called Secrecy Bill.

President Jacob Zuma has delayed signing the controversial legislation for 18 months, but a recent news report said State Security Minister David Mahlobo has been drafting regulations to implement the Protection of State Information Bill.

The report by Andisiwe Makinana of City Press said the draft regulations are at an “advanced stage.” The minister is quoted as saying the lack of regulations was “holding the bill back.” He said, “It’s a good law. I’ve read it.”

The bill would introduce punitive measures,  including imprisonment, for those who publish classified information. It was pushed through Parliament towards the end of 2013 by the African National Congress party over the objections of minority political parties, civil society

“Mahlobo said he was aware that the `biggest issue’ with the bill was around the matter of handling or publishing classified information,” according to the article.

“But you know, everywhere in the world it is an offence to handle information that is supposed to be handled in a particular way; you don’t do that. In private companies, people get fined. That thing is not bad; every country regulates information,” he said.

R2K Dismayed

The leading group opposing the bill, Right2Know, issued a statement saying it was “dismayed” by the development.

“Given the Presidency’s silence on the Secrecy Bill in the past 18 months, it would have been fair to assume that government had effectively rejected the draconian Bill,” R@K said. “We welcome this admission of the Bill’s fatal flaws – the right thing to do is to either send it back to Parliament to start afresh, or to refer it directly to the Constitutional Court.”

The statement also said:

Instead, Minister Mahlobo’s remarks promise that the Bill is to be returned to the fast track, despite its devastating effect on the free flow of information. The Bill would criminalise whistleblowers, investigative journalists, and civil society activists who use information and freedom of expression to hold secretive government dealings to account.

The media reports on South Africa’s ‘Spy Cables’ scandal in March 2015 show exactly the damage that could be done by the Secrecy Bill. Those reports uncovered important information in the public interest – including a plan by the State Security Agency to spy on civil society groups at the COP17 climate talks, and share intelligence on “rogue NGOs” and political dissidents with a variety of allies. The cables also exposed the various backroom dealings and disregard for human rights of various international intelligence agencies.

Yet these public reports could easily have been criminalised under the Secrecy Bill’s broad and elastic definition of ‘espionage’, which carries penalties of up to 25 years in jail, and has no public interest defence.

Minister Mahlobo also sarcastically warned critics of the Bill not to “start teaching each other what human rights mean, what this freedom means and what the responsibilities are.”

This is a particularly regrettable comment, given recent criticism of the State Security Agency’s track record on transparency and human rights. This has included the release of a report on the SSA’s apparent involvement in spying on community groups, unions and other civil society organisations, and its discredited investigation of alleged ‘CIA’ affiliations of the Public Protector and others. (See R2K’s “Big Brother Exposed” report.)

Editors Urge Court Review

The SA National Editors’ Forum (Sanef) in a statement to mark World Press Freedom Day, said  that a public interest defence clause in the bill would enhance the media’s ability to assist in the fight against corruption.

“We therefore reiterate our call on this day, to the ANC and President Jacob Zuma in particular, to send the bill to the Constitutional Court for ratification before signing it into law,” said Sanef chairperson Mpumelelo Mkhabel.

“The bill is arguably the biggest threat to press freedom and freedom of expression since the dawn of democracy. We stand ready to challenge it in court should the president sign it into law.”

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