The Assembly of Delegates of International PEN, Meeting at its 77th World Congress in Belgrade, Serbia, 12 September to 18 September 2011

12 Sep 2011

PEN International is deeply concerned that South Africa’s Information Protection Bill still embraces too much “secrecy” despite changes

Delegates at the annual congress of PEN International in Belgrade from 12-18 September 2011 expressed deep concern that while recent amendments to the draconian Protection of Information Bill now passing through the South African Parliament have accommodated some of the opposition to the Bill by journalists, lawyers and non-governmental institutions, it continues to contain provisions that threaten the freedom of writers and journalists.

The amendments have reduced the scope of the legislation and have thus limited the classification of material as secret. Two changes last November resulted in the removal of commercial information and information impacting on the national interest as subject to classification which had the effect of encompassing almost all categories of information.

Another change in June, this year, limited the more than 1,000 organs of state that may classify information to only departments dealing with intelligence and national security. These amendments and the removal of mandatory prison sentences of up to 25 years as well as the appointment of a retired judge to adjudicate on appeals against classification have been welcomed as important reforms. However, a close watch will be maintained over the definitions to be applied to intelligence and national security matters and material classified by those departments.

However, despite these revisions journalists and writers are continuing to voice strong protest at many of the remaining features of, or omissions from, the Bill.

Among these are:

The retention of harsh prison sentences;
No indication whether a judge may impose a fine as an alternative to a prison term;
Excessive powers of the Minister of State Security to classify or de-classify material, duties that should be performed by civil servants according to regulations with the minister maintaining oversight; indeed, his extensive powers to classify information nullify to a large extent the positive effects the removal of “national interest” has on the range of classifiable material;
Judicial officers required to exclude public from courts when classified information is involved in cases;
The omission of a requirement that written reasons be provided by persons classifying information so that these may be reviewed by a senior official;
Omission of a review committee headed by a retired judge; and
Omission of a public interest defence for publishing classified information.

The inclusion of a public interest defence has been a persistent demand by critics, especially those concerned at the vulnerability to prosecution and imprisonment that the withholding of such a defence holds for whistle-blowers and investigative journalists.

PEN International is concerned that the reason advanced by the government for not including this defence in the Bill is that similar legislation in other parts of the world do not have a public interest defence provision. PEN International notes that some countries such as the United States do not have such a defence in their legislation because the law does not have content that calls for one. The Minister believes such a defence would nullify much of the legislation.

A feature of the Bill that is seldom alluded to but which can have fearsome consequences for journalists and the public is clause 30 (6), sometimes referred to by lawyers as the “double jeopardy clause”. It is retained and reads: “In response to a request for the review of the classified status of information in terms of this Act the head of an organ of state may refuse to confirm or deny the existence or nonexistence of information whenever the fact of its existence or nonexistence is itself classified as top secret.”

That means that a person may find himself or herself in the frightful position of being in possession of a classified document without knowing that it is classified and, more importantly, with no means of finding out what the status of the document is.

PEN International calls for the Bill to be withdrawn and drafted afresh taking into account the fact that criticisms are still being levelled at the Bill. The changes that have been made – and the others that are being called for – suggest that the remaining Bill is being dealt with in a piecemeal fashion and requires proper appreciation of its purposes to be reflected in the content.

PEN International emphasizes that though it accepts that governments have the right to classify security information, this should be defined in the narrowest possible way and ensure that the media’s and writers’ freedom of expression and independence should be upheld to the fullest extent to enable democracy to flourish.