24 August 2012

R2K: Two years later, it's crunch-time on the secrecy bill



On Wednesday 28 August, the Protection of State Information Bill (the Secrecy Bill) enters the final stages of Parliamentary deliberation. A recent Parliamentary programme has the Secrecy Bill scheduled to be voted through the NCOP house on 11 September, less than two weeks later.

Next week also marks two years since the campaign against the Secrecy Bill was launched. This campaign has seen protests through the streets of every major South African city, community hall meetings in townships and suburbs, pickets and petitions as well as many submissions to Parliament and the gathering of international opposition to the Bill. The threat of the Secrecy Bill has awakened our collective consciousness to the plight of whistleblowers, who even today are targeted, isolated and punished for speaking out against abuse of authority, exposing corruption and the hiding of information that the public has a right to know. It has highlighted the struggle for most communities to access information that directly impacts on their daily lives under the current dispensation. It has become a living symbol of all threats to the free flow of information, and by default, the challenges to our hard-won democracy.
Undeniably, in the face of sustained public pressure and community outrage over the past two years, the Secrecy Bill has undergone a number of important drafting changes. However, even if the amendments currently proposed by ANC members of the committee stand, and unless drastic further improvements are introduced, the Bill will remain an assault on open, accountable and responsive democracy.

The current timeline set for the Secrecy Bill - less than two weeks in which to solve the impasse - risks falling into the same trap that has bedevilled the legislation for the past two years. We will mobilise to ensure these demands are heard, and that the Secrecy Bill's draconian provisions don't come to pass!


Inadequate pubic interest defence
The current ANC proposal includes a partial public interest defence. It provides that a person accused of disclosing classified information (clause 43) would not be guilty should he or she show that the disclosure "reveals criminal activity".

Despite this being a welcome concession to the overwhelming public demand for such a defence, severe problems remain:
• The clause sets the bar too high: only exposure of "criminal activity" is allowed. What of shady tendering practices or improper appointments within key state agencies, or when the misclassification was not criminal (e.g. the classifier acted in good faith, or the public interest in the information only arose after it was classified)?
• The clause is out of step with existing Promotion of Access to Information Act (PAIA) guidelines for public interest access, where an "imminent and serious public safety or environmental risk" also mandates disclosure.
• While the clause applies to the secrets of the military and police agencies it does not apply to a parallel clause (clause 49) covering the secrets of the State Security Agency (SSA), which will remain under a complete veil of secrecy (see "Veil of secrecy over State Security Agency" below).
• Similarly there are sufficient loopholes in the law that 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", "receiving state information unlawfully" or "hostile activity" offences (clauses 36-38), which again are not covered by the proposed defence.

There is no public domain defence
The Secrecy Bill seeks to criminalise even ordinary members of the public for being exposed to classified information, and promises severe consequences on "any person" who possesses (clause 44) or discloses (clause 43) classified information.

This is the equivalent (should South Africa have its own "Cablegate") of the state prosecuting each and every person who downloaded the secret cables from Wikileaks; every person who passed it on to another; and every journalist or blogger who wrote about it.

Other democracies - including those with regressive secrecy laws - live with the fact that classified information, once leaked, cannot be make secret again. This Bill will criminalise every subsequent disclosure.

Veil of secrecy over State Security Agency
The "prohibition of disclosure of state security matter" offence (clause 49) make it a special offence to receive, possess or expose information classified by the Department of State Security: even the narrow protections included elsewhere in the Bill do not apply to the State Security body, and there is no protection for whistleblowers in that Department, nor anyone else who exposes wrongdoing.

The definition of a "state security matter" (clause 1(1)), which underpins this offence, is also dangerously overbroad: Not only does it include any matter "dealt with" by the SSA, but also its "functions". The combined effect is to draw a complete veil of secrecy over the organisational being and work of the SSA.

Loopholes in espionage and related offences

This concern relates to the three offences of "espionage" (clause 36), "receiving state information unlawfully" (to benefit a foreign state; clause 37), and "hostile activity" (similar to espionage, but the focus is on benefit to a hostile group, alternatively prejudice to the national security; clause 38).

In spite of improvements to the wording, the state will not have to prove (because the word "intentionally" is misplaced) 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.

This leaves the door wide open to the malicious prosecution of whistleblowers, activists or journalists who want to expose crime or corruption, but who have to admit that there might be some collateral damage to the national security or a benefit, however remote, to another state or hostile actor. Unlike the simple disclosure offence (clause 43), these clauses do not provide any whistleblowing or even partial public interest defence.

Accessing classified information more difficult
In a procedure similar to that found in the Promotion of Access to Information Act (PAIA), the Bill permits applications for the declassification and subsequent access to classified information (clause 19).

This clause attempts to mandate declassification and disclosure where the public interest in the exposure of a substantial contravention of the law, criminal misclassification or an "imminent and serious public safety or environmental risk" outweighs the harm that will arise from disclosure.

But it is completely silent as to what the outcome should be when none of these exceptional circumstances are met. This is exacerbated by the fact that the Bill will expressly override any other access legislation - including, it appears, PAIA itself.

This means in turn that PAIA - which has its own built-in restrictions for sensitive information - will not assist in the potential declassification of classified information. The effect is that, unlike now, state entities will be entitled to refuse access to classified information simply because it is classified, and not because there is a valid underlying reason for its protection from disclosure, and court action is the only resort.

We have already seen how PAIA has failed to realise the right to access information - more than two-thirds of PAIA applications fail to even get a response - and requests for access to information in the current dispensation often require expensive and time-consuming court action that is out of reach for most people. So far, the attempts to ‘integrate' the Secrecy Bill with PAIA only promise further obstacles to access to information.

Unconstitutionally classified info remains classified
In terms of clause 44, information classified under old and constitutionally problematic legislation and policies will remain classified under the Bill pending a review for which no time limit is set - this includes apartheid-era legislation.

Academics, journalists, and many activists will become instant criminals for having access to apartheid-era files revealing human-rights abuse. The easy solution would be to decriminalise the possession of pre-Bill records (even if disclosure is criminalised, which may be problematic in itself), which would allow time for declassification applications.

Draconian sentences
Although minimum sentences have been reduced in the proposed ANC amendments to give the courts more discretion, the maximum penalties (chapter 11) remain extremely harsh; up to 25 years in jail.

Of particular concern is that the penalty for "simple disclosure" (clause 43) - i.e. unlawful disclosure without aggravating circumstances such as that it benefited a foreign state or prejudiced the national security - now also attracts up to 25 years in jail.

Right2Know statement.