April 25, 2013, the National Assembly voted 184 to 74 (with 1 abstention) in favour of the adoption of the latest draft of the notorious Protection of State Information Bill (aptly dubbed the Secrecy Bill).
The National Assembly was widely criticised for originally passing the Bill on 22 November 2011, by 229 yes votes to 107 no votes (with 2 abstentions). Riddled with faults and punitive measures, it was argued in many quarters at the time that the Bill would heavily restrict the flow and access of information and severely inhibit whistleblowers, thus enabling and encouraging corruption, and stifling democratic principles.
Over the past 18 months, NGO's, civil society movements, opposition parties and members of the public have continued to be vocal about the unconstitutionality of the Bill. Due to this persistent opposition to the Bill, it has undergone a number of amendments under the stewardship of the NCOP commission tasked with reviewing the bill, some constructive, others less so.
Now that these amendments have been passed by the National Assembly, the Secrecy Bill will now be forwarded to the President who will then either approve its final adoption, or submit it to the Constitutional Court to assess the bill's constitutionality.
Why is the Bill still being challenged?
Whilst the draft passed is undoubtedly an improvement on previous versions of the bill, the amendments made are simply insufficient to allay question of the Bill's constitutionality.
In line with its mandate to extend the boundaries of freedom of information in South Africa, SAHA therefore continues to oppose the Bill, primarily on the basis that the Bill will override the Promotion of Access to Information Act (PAIA), the legislation that enables the South Africa's right to know, as enshrined in our Constitution.
In order for the Bill to be harmonised with PAIA, the following still need to be addressed:
Classification and PAIA
As it currently stands in the Bill, the procedure to classify, reclassify and or declassify information will lie with a Classification Review Panel. This contradicts PAIA, and in particular Section 11 of PAIA.
This classification process is likely to have a negative impact on releasing of documents. SAHA often receives correspondence from government departments erroneously marked "confidential", "private" and sometimes "classified" when they should be publicly available. This tendency in 'classifying' records raises serious questions about the potential mis-classification of records. The Bill gives ministers and those they elect the power to classify information, but does not clarify the level or rank a person has to have against the level of classification awarded to that rank or position.
Furthermore, the Bill opens a back door for records to be denied simply because they had marked it classified. There is no obligation to review whether the requested information should in fact be classified. Further, if the material is released prior to its declassification, the people that disclose and receive the information could still face stiff prison sentences.
Unclear time frames for declassification
Currently, government bodies are obliged to provide a response to a request for classified information within time frames clearly set out in PAIA. Under the Secrecy Bill, government must decide whether information can be classified, reclassified or declassified before it is provided to a requester, a process for which timeframe is provided.
SAHA's experience, and that of its civil society partners1, has demonstrated that many public bodies do not pay heed to the timeframes set out on PAIA, often ignoring requests and appeals, only responding to requests one the request has been escalated or court action is threatened.
Additionally the Bill proposes that the review panel comprise of 5 members who are to meet "at least once a month at such times as the chairperson may determine". Based on SAHA's history of submitting PAIA requests for over a decade, this will be inadequate to cope with the anticipated work load without unreasonable delays. It is generally only been those entities that have dedicated human resources with knowledge and expertise on PAIA that tend to comply regularly with PAIA time frames.
SAHA's publication, "Paper Wars: Access to information in South Africa" gives an account of some of the work SAHA has done in relation to access to information, detailing some of the challenges of securing access to incorrectly classified records, as well as the ways in which measures by government officials tend to default to refusing documents for fear of being disciplined for making an error, this when the very department assigning them the responsibility has failed to provide them with the training necessary for them to interpret and apply PAIA correctly.
Public interest defence clause
Although attempts have been made to relax punitive measures in the public interest defence clause, this aspect of the Bill still falls short. The language is still too ambiguous, which will inevitably misinterpretation and lead to unlawful arrest of individuals who poses information which should be in a public domain as a matter of public interest.
For instance s34 entitled "Espionage and related offences" is too broad. Related offences could mean anything that might or could be associated with espionage; the ministry would only have to think that a person in possession of a certain record that is erroneously marked as confidential or top secret, even with or without the knowledge of the person who either delivers and or possesses the language. By (mis)interpretation, the Bill, if ascended could be interpreted in such a way as to suggest that all SAHA staff could face imprisonment of up to 25 years for a document released to it under a PAIA request which has been marked as "top secret".
Drafting and language
The manner in which the Bill has been drafted has been a major concern for many who have been opposing it. The Bill in many instances does not take into consideration inconsistencies in the language or definitions contained in existing, related legislation and the possible ripple implication it could have.
Furthermore, the language in the bill is often ambiguous, which opens it up to multiple (mis)interpretations.
In anticipation of the Bill being passed, several organisations, campaigns and individuals have been preparing to challenge the Bill on its constitutionality, or rather the lack thereof.
SAHA is also prepared to join in forces to oppose the Bill and in particular highlighting the negative impact the Secrecy Bill has on PAIA, which is the constitutionally mandated mechanism protecting the right of access to information, the right to know, in South Africa.
1See the work of the PAIA Civil Society Network (http://www.saha.org.za/projects/national_paia_civil_society_network.htm) as well as R2K's recent State of the Secret Nation report (http://www.r2k.org.za/2013/02/17/secret-state-of-the-nation-report/)