Open Letter - Right2Know
To: Members of the Ad Hoc Committee on the Protection of State Information Bill (NCOP)
CC: Hon. Sisulu, Speaker (National Assembly)
Hon. Mahlangu, Chairperson (National Council of Provinces)
Hon. Mazibuko, Leader of the Parliamentary Opposition
Hon. Lekota, Leader of COPE in Parliament
Hon. Buthelezi, Leader of IFP in Parliament
Hon. Meshoe, Leader of ACDP in Parliament
On behalf of the Right2Know Campaign we want to acknowledge the stand the above-mentioned committee has taken against the State Security Agency and other securocratic elements pushing draconian aspects of the Protection of State Information Bill (POSIB) popularly known as the Secrecy Bill. We also acknowledge the stand you have taken in defence of the right of everyone in South Africa to realise an open and responsive democracy.
We want to applaud the consensus you have reached in striking down the unacceptable special protections proposed for the Department of State Security and proposed minimum sentences, as well as excluding municipalities from classifying powers. In addition we note that the committee has given an in-principle commitment that the provisions of the Promotion of Access to Information Act (PAIA) will take precedence over POSIB.
However, we not with concern that there are a number of critical issues relating to the constitutionality of the Bill that you have not begun to tackle in the Committee.
We further note with concern that Committee members are withholding various documents and details of vitaldiscussion from the public. In a matter of such great public concern, it is vital that the process going forward is fully transparent, and we call for these deliberations to take place in the open.
Critical issues that must still be resolved include:
- Introducing a Public Domain Defense.
Only those responsible for keeping secrets should be prosecuted for leaks. Rather than securing sensitive information at source, the Bill visits the responsibility, and severe consequences, on "any person" who possesses (clause 44) or discloses (clause 43) classified information - i.e. on society at large.
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.
A related problem is the lack of a public domain defence. Other democracies (even those with regressive secrecy laws) live with the fact that classified information, once leaked, cannot be made secret again. This Bill will criminalise every subsequent disclosure.
Both these deficiencies represent a fundamental attack inter alia on the right to freedom of speech.
- Expanding the limited Public Interest Defense.
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, including criminal activity for ulterior purposes listed in section 14 and section 47 of this Act". (Clauses 14 and 47 deal with the criminal misclassification of information by a classifying authority.)
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 permitted. 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.
• The risk remains 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 (see "Close loopholes in espionage offences" below).
- Address draconian sentences.
Although minimum sentences have been removed in the proposed amendments to give the courts more discretion, the maximum penalties (chapter 11) remain extremely harsh - up to 25 years in jail.
Particularly worrisome is that the penalty for "simple disclosure" (clause 43) - that is unlawful disclosure without aggravating circumstances such as that it was for a foreign state - now also attracts up to 25 years in jail.
- Information classified too easily.
When the Bill becomes law, only the security services and related bodies will be allowed to classify information. However, the Minister of State Security will be entitled to include other state bodies only "on good cause shown" (clause 3). This is not a strong enough safeguard, meaning the power to classify may become pervasive.
And in spite of assurances that the power to classify will be given only to sufficiently senior officials (clause 13), a loophole means that even junior members of the security services will be allowed to classify information until and if his or her boss decides otherwise.
- Ensure greater ease of accessing classified information.
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 commendably mandates 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 protections 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.
Further problems relating to the Bill's access provisions are:
• The simple possession of classified information appears to be illegal (clause 15 read with clause 44) even pending a request for declassification and access. Not being able to refer to the information may make it virtually impossible to prove that the information should be declassified for one of the reasons mandated by the Bill.
• The Classification Review Panel (Chapter 7), which "independently" oversees classification decisions, is not sufficiently independent, among other things as the Minister of State Security has joint control over matters such as its operational rules and staff remuneration.
• The Classification Review Panel cannot be approached by members of the public, which means citizens are deprived of an alternative to costly and cumbersome court procedures when the authorities refuse to declassify information that should be declassified.
- Close loopholes in espionage 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.
- Declassify unconstitutionally classified information.
In terms of the transitional arrangements, 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.
Academics, journalists, researchers and many activists would become instant criminals for hanging on to troves of 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.
In conclusion we would like to offer all the technical capacity residing within the constituents of the Right2Know Campaign to assist with any briefing in relation to the above outstanding matters, and we trust that you will set a realistic timeframe for addressing the concerns outlined above.
We would also like to invite you hear the concerns of Archbishop Thabo Magoba and other civil society leaders at the Right2Know Campaign rally in the Cape Town Central Methodist Church on Saturday 8 September at 13h00.
The Right2Know Campaign