About this campaign

The civil society group starting this map are calling for the legislation to be redrafted to meet constitutional requirements of openness and transparency.

 

If you have news, opinions or events you want to share about media freedom, access to information, and your right to know, map them here.

 

 

For a collection of documents from civil society partners, see more here - http://www.right2know.org.za/

 


 


LET THE TRUTH BE TOLD

 


Stop the Secrecy Bill!


A responsive and accountable democracy that can meet the basic needs of our people is built upon transparency and the free flow of information. The gains of South Africans’ struggle for freedom are threatened by the Protection of Information Bill (the Secrecy Bill) currently before Parliament. We accept the need to replace apartheid-era secrecy legislation. However, this Bill extends the veil of secrecy in a manner reminiscent of that same apartheid past. 


This Bill fundamentally undermines the struggle for whistleblower protection and access to information. It is one of a number of proposed measures which could have the combined effect of fundamentally undermining the right to access information and the freedom of expression enshrined in the Constitution.


Our concerns: 

The Bill will create a society of secrets 


Any state agency, government department, even a parastatal and your local municipality, can classify public information as secret. 

Anything and everything can potentially be classified as secret at official discretion if it is in the ‘national interest’. Even ordinary information relating to service delivery can become secret. 

Commercial information can be made secret, making it very difficult to hold business and government to account for inefficiency and corruption.

Anyone involved in the ‘unauthorised’ handling and disclosure of classified information can be prosecuted; not just the state official who leaks information as is the case in other democracies.

The disclosure even of some information which is not formally classified can land citizens in jail. This will lead to self-censorship and have a chilling effect on free speech. 

Whistleblowers and journalists could face more time in prison than officials who deliberately conceal public information that should be disclosed. 

A complete veil is drawn over the workings of the intelligence services. It will prevent public scrutiny of our spies should they abuse their power or breach human rights. 

Who will guard the guardians?


Officials do not need to provide reason for making information secret 

There is no independent oversight mechanism to prevent information in the public interest from being made secret.

The Minister of State Security, whose business is secrecy, becomes the arbiter of what information across all of government must remain secret or may be disclosed to the public.

Even the leaking of secret information in the public interest is criminalised. 

Unusually severe penalties of up to 25 years in prison will silence whistleblowers, civil society and journalists doing their job.

All these factors will limit public scrutiny of business and government, whether through Parliament or journalists. Accountability will be curtailed and service delivery to the people will be undermined. 

Our demands: 


The Constitution demands accountable, open and responsive government, realised among other things through freedom of expression and access to information. Our elected representatives are bound by these Constitutional values and any legislation they pass must comply. We demand that the Protection of Information Bill - the Secrecy Bill - must reflect the following: 


Limit secrecy to core state bodies in the security sector such as the police, defence and intelligence agencies. 

Limit secrecy to strictly defined national security matters and no more. Officials must give reasons for making information secret. 

Exclude commercial information from this Bill. 

Do not exempt the intelligence agencies from public scrutiny. 

Do not apply penalties for unauthorised disclosure to society at large, only those responsible for keeping secrets. 

An independent body appointed by Parliament, and not the Minister of Intelligence, should be the arbiter of decisions about what may be made secret. 

Do not criminalise the legitimate disclosure of secrets in the public interest. 

Sign on, circulate, educate, activate.


Who signs on: 


Civil Society Organisations (South African based) 

International friends (organisations) who share our concerns 

Individuals









Briefing note: Protection of Information Bill

 

Aug 2010

 

 

Background

 


The apartheid-era Protection of Information Act (84 of 1982) remains on the statute books, but government acknowledges parts are unconstitutional and unenforceable.


Since 1998 a Cabinet policy document, the Minimum Information Security Standards (MISS), has been the main instrument to protect state secrets, but it too lacks enforceability.


These factors – together with what State Security Minister Siyabonga Cwele has said are shortcomings in the Act in that it “does not provide sufficient protection for the State against information peddlers and current trends concerning espionage” – prompted a process to draft new legislation.


After Cabinet assented to the new Protection of Information Bill (2008) in March 2008, Cwele’s predecessor, Ronnie Kasrils introduced it to Parliament for consideration by an ad-hoc committee composed of inter alia members of the intelligence and justice portfolio committees.


Civil society and media organisations aired concerns including that the proposed provisions would lead to chronic over-classification and that there was no exemption for whistle-blowing and publication in the public interest – a public interest defence. In short, they feared the Bill would undermine constitutional rights including access to information and media freedom.


The Bill was soon withdrawn for redrafting. Kasrils recently confirmed that he was swayed by the calls for a public interest defence, but he resigned from government later that year when the ANC recalled then-president Thabo Mbeki.


Cwele published the redrafted Protection of Information Bill (2010) for comment in March this year. Although the stated aims of the Bill refer to constitutional values including transparency and the free flow of information, the 2010 draft compounds many of the previous concerns and gives rise to new ones.


A new parliamentary ad-hoc committee, chaired like its predecessor by ANC MP Cecil Burgess, is considering the Bill. Civil society organisations (including ANC alliance partner Cosatu), the media and one constitutionally-mandated Chapter 9 institution, the SA Human Rights Commission, have expressed deep concerns to the committee and in public. Many contend the Bill will not pass constitutional muster. A Constitutional Court challenge is regarded by many as an ultimate remedy. 


Common concerns and solutions

 

 

 

Problem 

Effect 

Proposal 

Provision 

The power to classify extends to all state entities including government departments, state-owned companies (which compete with private companies), provincial and local authorities

 

The veil of secrecy is cast extremely widely, extending hurdles to the free flow of information across the state sector and society

Limit classification to core security sector departments: intelligence, military, police, diplomatic service

Chapter 1 section 3

“National security” considerations override democratic rights

 

Classifiers obliged to give precedence to state security over citizens’ rights; ignores rights as key component of human security

 

Remove override to harmonise with constitutional values

Ch 1 s6 and s6(j) in particular

Key consideration in classification decisions is the “national interest” very broadly defined

 

Chronic and widespread over-classification likely

Use strictly-defined “national security” as key consideration in classification decisions

Ch 5 s11

Commercial info (often 3rd party info) in hands of state is subject to classification if state or 3rd-party interest may be prejudiced by disclosure

Veil of secrecy can be drawn over e.g. public tender processes, undermining clean and accountable government and exposure of corruption

Leave protection of commercial information to existing law. Classify commercial info only if justified under general provisions of Bill relating to national security

 

Ch 5 s12

Officials can classify en-bloc, and without recording reasons for classification decisions at time of classification

 

Chronic and widespread over-classification likely

Case-by-case classification decisions with contemporaneous recordal of reasons

Ch 6 s14

Classification levels determined by speculative levels of harm with low thresholds (e.g. “may be harmful”)

 

Chronic and widespread over-classification likely

Firm up test, e.g. “could reasonably be expected to cause demonstrable harm”

Ch 6 s15

Minister of State Security, whose business is secrecy, made arbiter of classification and declassification decisions

 

Further bias towards secrecy, no independent oversight

Chapter 9 oversight body necessary

Ch 6 s17(e), Ch 7 s21(3), Ch 10 s30 & 31

Extremely heavy penalties of up to 25 years; prescribed minimum sentences often without the option of a fine

 

Unusually harsh punishment; compounds chilling effect on free flows of info

Consider international standards

Ch 11

“Hostile activity offences” replicate spying offences but without onus on state to prove intention to benefit a foreign state, merely that offender “should have known” that breach of classified info would prejudice the state, even indirectly. Penalty up to 25 years

 

Can ensnare journalists and “information peddlars” (PIs etc) where state alleges breach of classified info prejudiced the state. Chilling effect on civil society and media exposure of corruption etc

At very least require an intention to prejudice the state

Ch 11 s33

Simple possession or disclosure of classified information is criminalised for any person, not just for those on whom there is an original duty to protect classified info

 

 

International best practice stems leakage of secrets at source (present and former state officials entrusted with secrets). This Bill places hurdles throughout society, penalising exposure even once the horse has bolted. Free information flows and speech are curbed. Publication appears a bigger concern than exposure to hostile forces

 

Apply penalties only to those who have an original duty to protect info (but subject to public interest defence in case of whistleblowing – see below)

 

Ch 11 s37-39

Simple possession or disclosure even of information not formally classified can be penalised by imprisonment of up to 15 years

 

Likely to induce self-censorship and further chill free flows of info due to grave uncertainty what constitutes a crime

Apply penalties only where information is formally classified

Ch 11 s38 & 43

Bill is made contiguous to Promotion of Access to Information Act (PAIA), meaning categories of info the state nominally must refuse in the course of PAIA requests become a criminal offence (3-5 years) for any person to disclose

Displaces the onus of protection from the state to society at large; places commercial and personal privacies best covered by ordinary law under the operation of national security legislation with harsh penalties; ignores the wide interpretive and discretionary boundaries of PAIA; induces uncertainty and self-censorship as harsh penalties apply to the disclosure of information not formally classified

 

Scrap provision

Ch 11 s38 read with ch 5 s(11)(3)(g)

Complete immunity from exposure for State Security Agency (NIA and SASS) and blanket ban over matters it handles. Disclosure of any “state security matter” – i.e. any matter “dealt with” by it or “relating to its functioning” – attracts penalties up to 15 years, regardless of whether the info is in material form or not, classified or not

 

Public oversight over the agency effectively banned; potential censorship of any other matter where the agency claims it is a matter within its remit; induces uncertainty and self-censorship as extremely harsh penalties apply to the disclosure of information not necessarily formally classified or even in material form

 

Scrap provision

Ch 11 s43 read with definition of “state security matter”

Provisions forcing new protections when classified information is submitted as evidence in court. Hearings regarding whether info to be disclosed in court are to be held in secret

 

Ordinary discretion of courts and principles of open justice undermined; justice cannot be seen to be done

Restore judicial discretion including whether to have any portion of a hearing in camera

Ch12 s46

Bill is not synchronised with whistleblower legislation (Protected Disclosures Act) and public interest overrides in the Promotion of Access to Information Act. The Bill trumps the protection these Acts afford to the disclosure of crime, abuse of power, threats to public safety, etc

Possession and disclosure of classified (and potentially some unclassified) info is penalised by the same heavy penalties of up to 25 years even where the intention is to expose e.g. corruption or environmental threats. Serious disincentive to whistleblowing and investigative journalism

 

Include a public interest defence, consistent with existing law, where unauthorised possession and disclosure is intended to serve the public interest

General