Protection of State Information Bill Passed by Parliament; Call for Constitutional Court Review

30 May 2013

by Dr. Raymond Louw, Vice President of SA PEN, 30/04/2013

After five years of debate, South Africa’s Protection of State Information Bill, or secrecy bill as it was dubbed, the legislation passed through the final stage of the Parliamentary process on April 26 with 190 members voting in favour, 75 voting against and one member abstaining. A total of 134 members, of which 34 were members of the ruling party, the African National Congress, were absent.

The next step is for President Jacob Zuma to sign the bill into law or if he has doubts about its constitutionality, to return it to the National Assembly for review. Alternatively, he can refer it directly to the Constitutional Court to establish its constitutionality. If he signs it into law the opposition parties have the option of referring it to the court if they can muster 134 votes, a third of the house’s 400 members. That will be a hard task because opposition members in the house total 136 and not all of them may vote for such a move and the chances of ANC members siding with the vote are slim.

Several civil society organisations such as the South African National Editors’ Forum, the Freedom of Expression Institute and the Right2Know campaign who have strongly opposed the bill have declared their intention to refer it to the Constitutional Court if the parliamentary processes do not succeed. The process open to them is to apply to the court directly.

Their determination suggests that ultimately the bill will land up before the court and several lawyers – in contrast to the government’s legal advisors – believe it will fail the constitutional test.

The lengthy processes to which the bill has been subject — some 800 changes to the text were made — has resulted in many improvements, but the bill remains under attack because the amendments have not gone far enough and there are still some very objectionable features.

The major criticism remains a failure to include a public interest defence for contravening a provision of the Bill prohibiting the publication of classified information that should be in the public domain in the public interest. Lack of this protection could be harmful to whistle-blowers, journalists and members of the public.

Other broad criticisms of the bill are that the definitions and classification procedures and applications are too broad and not strictly limited to national security which the bill states is the purpose; the scope for classification to be applied includes cabinet ministers and heads of government departments and other organs of state which make application showing good cause for such power to be extended to them; the wording of some sections of the bill is confusing and contradictory and open to misinterpretation; and the excessive powers given to the Minister of State Security whose role extends beyond the scope of policy making and could result in political interference in the classification of information.

Another complaint is the manner in which the drafters of the bill have ignored the principles for classification of official secrets outlined in the Johannesburg Principles drawn up by a group of senior lawyers and experts in international and constitutional law, national security and human rights who in 1995 gathered in a country lodge north of Johannesburg to compose them into a document which has been endorsed by the United Nations Commission on Human Rights. The conference was organised by Article 19 in collaboration with the Centre for Applied Legal Studies at the University of the Witwatersrand in Johannesburg.

One of the broad descriptions of subject areas that give rise to concerns about the manner in which a very wide range of information can be classified is contained in the definition of national security. This includes the protection of the people and territorial integrity of the Republic against the exposure of economic, scientific or technological secrets vital to the Republic.

The manner in which authority to classify information is extended far beyond the confines of the security establishment, despite a clause which states that secrecy is justifiable only when it is necessary to protect the national security, emerges in another clause which states that the powers of classification, reclassification and declassification apply to the cabinet, security, defence and police services and to any organ of state or part thereof that makes application to the Minister of State Security. A head of an organ of state may delegate, in writing, the authority to classify state information to a staff member at a sufficiently senior level without spelling the level of seniority. Potential ministerial involvement in classification is illustrated by a clause which says that if there is significant doubt as to whether state information requires protection, the matter must be referred to the relevant minister for a decision.

While having made the point that protection of national security is the only justifiable reason for secrecy, another clause dealing with the principles that underpin the legislation “and inform its interpretation and implementation’’ states that the protection and classification of certain state information is however vital to save lives, to enhance and to protect the freedom and security of persons, bring criminals to justice, protect the national security and to engage in effective government and diplomacy. When information is categorised as classified, all individual items of information that fall within that classified category are deemed to be classified.

A classification review panel will assess and hear appeals against classifications but the criticisms are that the minister has a say in the composition of the panel and also in how it conducts its affairs. Another area where the minister may exercise substantial powers to interfere with the classification processes and introduce undesirable political considerations is in the promulgation of regulations.

The penalties that can be incurred are severe and range from three to 25 years imprisonment. The most severe penalty is imprisonment of between 15 and 25 years for a person who unlawfully and intentionally communicates, delivers or makes available state information classified top secret which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state; or who unlawfully and intentionally makes, obtains, collects, captures or copies a record containing state information classified top secret which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state. Lesser prison sentences apply to similar offences involving information classified secret or confidential. Conviction on the basis that a person ought reasonably to have known would directly or indirectly benefit a foreign state is questionable.

Also questionable are the restrictive measures imposed on judicial offices to conduct court hearings in camera because classified information may be produced during the hearing.

A clause which will have a chilling effect on journalists states that a person in possession of a classified record knowing that it has been unlawfully communicated, delivered or made available must hand over the document to the police, the intelligence service or the state department that classified the information. Failure to do so carries a jail sentence of five years. It is uncertain whether having handed over the document the person would be charged with possession. If a reporter is involved – and they are frequently recipients of such communications — he or she may also be confronted with the ethical question of whether to disclose the identity of the person who gave the document.