Protecting Information and Our Rights – by Ronnie Kasrils –as Published in the Sunday Times – 18th June 2011

I know of no democratic state that does not protect sensitive state secrets. The simple reason being that the breach of whatever protective legislation might be deemed genuinely fit for the purpose would undermine national security. The sale or transferring of such information by public servants to a foreign power or domestic source cannot be ignored by any state. This extends to photographs or descriptive reports of such national key points such as security around dams, power stations or military bases. Also deemed secret are the identities of all but a select few of a country’s intelligence and security officers and agents. For most of the last century in Britain even the head of the secret services were incognito and not even photographed. Neither can the fabrication of false information aimed to destabilise the state or undermine political rivals, parties or individuals, go unpunished.

In an authoritarian and certainly in a totalitarian state virtually all government documents are regarded as strictly secret. Access to state information by the public – apart from the most sensitive documentation – is regarded as a key principle in a democracy and as important as such rights as the freedom of expression. Such principles are fundamental to our Constitution and Bill of Rights. One could not imagine genuine democracy functioning when much of government information is hidden. It is for this understandable reason that important sections of the South African public have been viewing with concern the passage of the Protection of Information Bill before parliament.

Such legislation is of course necessary because what is currently in place is the Protection of Information Act of 1982. Its provisions and categories of information are anachronistic – belonging to the Apartheid police state era. Masses of documentation of all state departments fall under varying degrees of confidentiality and are meant to be secured from public eyes. Access has been limited to the Promotion of Access to Information Act of 2000 which has proved slow and bureaucratic.

For the above two reasons in particular I deemed it necessary when I was Minister of Intelligence to commence with a process for replacing the legislation with law that would be fitting to our new democratic era. The team I assigned to the task included leading human rights lawyers. At the time there was a specific issue which a few members of the media expressed concern about. This was the absence of what is termed “a public interest defence.” The need for such a protective mechanism in law would arise when a public servant “whistleblower” exposed a serious misdemeanour and provided the media with such information. Whilst government might argue that the “leaking” of such information and its publication might undermine tenants of national security the defence could argue that publication was in the public interest and the whistleblower deserving of exoneration. After listening to such arguments at the time I arrived at the conclusion that this was a most valuable and valid point. I consequently instructed the drafting team to take this into account. By the time I resigned from government in 2008 I left work and process in place for the incoming government.

I have consequently been concerned that the new legislation has ignored this and other aspects of what was being drafted. None of the members of the team I had assembled have been so much as consulted after two years of intensive work. The result is plain to see.
Other reasons which have led me to criticise the current Bill are:

• The stiff penalties for a range of lesser and greater misdemeanours. Since these are categorised for minimum and maximum sentencing this means that guilt for an accused would end in the serving of considerable time behind bars. This would be the case even where mitigating reasons were compelling to simply warn or fine the individual or where the charge was a minor one;
• The broad, unfocussed nature of the Bill dangerously over-generalises the terrain of misdemeanours. In fact what is required is a narrow focus on concrete, clearly defined violations – such as those I itemised at the start of this article;
• The unnecessary range of government administrators and departments (Sports and Culture, etc.) which are to be made responsible for classification and de-classification. It would take endless years to clear the backlog of documentation which could so easily be released from apartheid-era control. Envisage also that an army of greater and lesser officials would be in charge of decisions relating to ambiguous levels of secrecy. This equates to a bureaucratic nightmare.
• The last minute rush to have Parliament pass the Bill is most unwise. This is a serious piece of legislation which could possibly be seen to infringe the Constitution. Care and consultation is needed where legislation is controversial to avoid unintended consequences, tensions and harm. Consent needs to be strived for. The current process has all the appearances of fools rushing in where angels need to warily tread. Indeed the chairperson of the ad-hoc committee concerned had reportedly declared that the fuss is because there is an “obsession with openness.”

Government needs to be sensitive to the fact that, correct or not, public perception is that the reason for the haste relates to the serial expose of corruption, extravagance and scandal which has created so much embarrassment for the ruling party. In fact loyal members of the Alliance are often amongst the first to demand that secrecy cannot be allowed to conceal misdemeanours that harm the ANC as much as government and country. It is in fact corruption, bribery, fraudulent deals, cronyism, tender violations, patronage, nepotism and such ills that world-wide are nails in democracy’s coffin. Joe Slovo, Chris Hani and others pointed to this as reasons for the decay of the once mighty Soviet Union. The most unfortunate victims are the poor who patiently await decent service delivery. The public demand elected representatives who live up to the motto of “serving the people”. The Arab spring is a reminder of what can be in store for an authoritarian elite who use the curtain of secrecy to feather their own nest. A healthy civic society and media are an integral part of the checks-and-balances required by a democratic system and can help clean up the cancer of corruption and the ills that go with it. They need to be encouraged and not treated with hostility and suspicion.