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Citizens Guide
to the Secrecy Bill
By Ruhan Robinson

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This is a Fair Act of Parliament

Introduction Lets be honest: every liberal, constitutionalist, journalist and concerned citizen took up the issue of media freedom on Tuesday 22 November 2011, the day we termed Black Tuesday. All of this is wonderful and the passing of the Bill by parliament could very possibly shake the young South African democracy all the way down into its foundations. Fighting for a good cause is wonderful, but do we really know what we are fighting against? We got #BlackTuesday trending on Twitter and we all wore our black in support of the cause. So? The question that remains, is what are we fighting against, i.e. what does the Bill say? I will attempt to answer this question by reading it, so you dont have to. Chapter 1 As with any Act of Parliament, piece of legislation or statute, whichever term is preferred, the Bill starts out by giving definitions to terms for purposes of the Bill. Its all wonderful to be ensured time and time again, that the Protection of Information Bill will not be a coverup for corruption, but the Bill defines a classification authority, i.e. the person empowered to classify information and state documents, as a head of an organ of state or any person to whom such authority was delegated by the head in writing. Now the first problem that arises is the fact that there is a need for classification at all, and the second point: the fact that a head has to decide this. Absolute power corrupts absolutely? Absolute power to absolutely hide corruption, even?

Censorship offends me.

~ Author Unknown
The Bill goes further in defining different classes of information, with terms and descriptions that are usually found in spy-thrillers: Confidential information and Top Secret being merely two of these. I do not believe that the definitions section is to be focused on too much, since the provisions of the Bill are to decide the fate of the future of South Africans freedom of speech and the press freedom which we so badly need. When moving on to section 2 of the Bill, which sets out its objects, s2(b) is already an issue for me. The problem being that it purports to promote transparency and accountability in governance. As far as Im concerned, this is not at all an object of the Bill.

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Finally in section 3 of Bill, it holds that the Bill is applicable to all organs of state and binds all natural and juristic persons. It then delegates legislative power to the Minister of Intelligence to provide for certain exceptions, which he may by way of notice in the Government Gazette apply to the relevant organ of state. Chapter 2 In this chapter the legislature sets out the general principles of state information. Here the legislature makes its intentions with the Bill clear, it says in section 4 that state information may be protected against unlawful disclosure, destruction, alteration or loss. Well this is good, isnt it? Our information may not be destroyed or altered. But then unlawful disclosure is more insidious than it seems now, because this is what the entire Black Tuesday campaign was based on. Do not let the word unlawful fool you. We will look at the sanctions of these unlawful disclosures in more detail below and in the meantime look at further principles. In section 6, the Bill further sets out the principles to be followed; boisterously proclaiming human rights as the basis of the Bill and individuals right to access to information. The Bill goes on to say that there must exist some confidentiality to save lives, protect freedom (while limiting it?), to bring criminals to justice and engage in effective government and diplomacy. If I am to understand this section correctly, what exactly would the need for the likes of ESKOM or Denel be to protect their information? Is ESKOM, as a parastatal, in the business of saving lives or furthering national interests abroad? Not? Then why does it need to have any protection whatsoever? Chapter 3 This chapter deals with the procedure and time limits to be applied to enforcing the Bill to fully give effect to its provisions. The Bill delegates legislative power to the Minister of Intelligence, who must within 12 months set out broad categories of information that may be classified, may be protected and what may not be protected. On this note, I feel it necessary to point out that if the executive is delegated the power to broadly prescribe these categories, the power has shifted from the legislature to the executive. There will be no voting in parliament as to what categories of information are to be applied; this is now an executive decision. Although the Minister is accountable to parliament in terms of s92(2) of the Constitution, the problem is that through the enactment of the piece of legislation that is the Bill, parliament inadvertently also delegates the part pertaining to the designation of classes of information to the executive. In section 8, the Bill delegates the power to classify, declassify and downgrade information, within the scope of the categories set forward by the Minister of Intelligence. The

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departments are to develop policies pertaining to the protection they wish to extend to their information. These departments have 18 months from the date of coming into force to develop and start applying these policies. Whether this was an argument put forward by the MPs who opposed the Bill, I do not know, but delegating the process of classifying information solely to the discretion of the executive to me is a scary thought. Checks and balances? Transparency? Why is the Bill silent on the issue of having sanction against the Minister for creating categories in terms of the information Bill that would actually undermine its own objectives? Chapter 4 Section 9 states that information that could be deemed valuable in future, may be classified as such from the get-go. It is thus possible to say that if another arms deal scenario would ever arise, nobody would from the initial negotiations be able to criticise the actions of the government and/or officials involved in the transaction. Chapter 5 Section 11 sets out the ambit of sensitive information. But the ambit, as you will see below, is one that doesnt quite align with the objects of the Act. The legislature assigns certain meanings to national interest. These national interests include, for example, the maintenance of all things owned and maintained by the state for the public. This sensitive information may thus not be unlawfully disclosed to the public. Doesnt this mean that public entities may now all of a sudden choose to not disclose issues that they face, since they exercise the power to protect this information? Surely if these entities are to be used for public benefit, they must be accountable to the public for not benefitting the public, no? I stress the fact that democracy should under no circumstances be equated to the existence of universal suffrage. The mere fact that the public can choose their leaders is not in itself democracy. Democracy also requires accountability. In order to have accountability, we need transparency. So, if the government at any level or sphere should be able to act behind a curtain for something they call national interest, a difficulty arises in how democracy is to be construed. If the public cannot see what their government is doing, then surely this is not transparent and with being disenfranchised of accessing the information, how could they possibly hold the government accountable for their actions? Then there is the matter of international relations. Apparently our dealings with foreign nations will also be sensitive information. An example: South Africa could continue selling weapons to pariah states, and the public would not be able to comment on this. If this specific clause, i.e. s11(3)(e) of the Bill, is to apply to such dealings, then the effects of this

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Bill extend beyond the borders of South Africa; human rights on the African continent may be at further risk. Section 12 goes further in describing the effect of commercial information, which has as its premise, the protection of information regarding any and possibly all commercial transactions of the State. The State in terms of this section may now not only limit the disclosure of their dealings, but also the information of those that they deal with. Would it be possible for the state to refuse to disclose its dealings with companies affiliated to or owned by the political class? Chapter 6 Section 15 clearly outlines 3 information classification levels. The first being called classified; this refers to information that might be harmful towards national or commercial interests of the State. The next level is Secret; in other words: information which may endanger national or commercial interests or the interests of a particular individual. The last one seems rather spy-thriller, Top Secret. Top Secret information includes information that could cause serious or irreparable damage to national interests. Also, here I smile, commercial information which could have a disastrous effect on the future existence of the entity. Why do I smile? The National Youth Development Agency has a budget of approximately R400 million; R180 million of which goes towards paying their staff and R106 million being paid for some unimportant congress. This has caused the Democratic Alliance Youth and the South African Young Communist League to call for the disbandment of the entity. Does it now also enjoy such protection, even though its wasteful expenditure could be utilised much better elsewhere?

The test of democracy is freedom of criticism.

~ David Ben-Gurion
Section 17 specifically prohibits any concealment of information solely on the basis that it would embarrass somebody had the information been public or for the purposes of hiding incompetence or malpractice. However, there is no mention of an institution to regulate the above. What happens if under the Bill there is a legitimate concern that needs to remain hidden and the same document is littered with incompetence and corruption? Then a whistle-blower, even with the necessary security clearance, has to remain quiet because there is no public interest clause inserted as a defence. No person with a legitimate concern can rely on raising a defence of something having been done in the interest of the public.

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Section 19 provides for declassification authorities. These authorities correspond with the classification authorities and I am very concerned that the courts are not mentioned among these. This would seem in line with Zumas view that the opposition should not co-govern through the court system. Democratic Alliance MP Dene Smuts then reminded the President, that as long as this remains a constitutional democracy, the opposition will exercise its rights in terms thereof. But where is that right now? Further in terms of section 20, the Bill provides for the lapsing of the classification. Maximum classification period is set at 20 years. If the Minister of Intelligence wishes to have the period extended for good cause, he needs to show this and may have the period extended. Chapter 7 This Chapter provides for the continued classification of state information; that is to say, whether information that has been classified will remain as such. Section 22 provides that a maximum of 10 years is given between departments having to review their classifications. I dont have too much to say here, but 10 years is a long time and departments can be expected to set up more onerous policies for review. If they are, then the legislature seems to be nave. Section 23(2) states that one may request that the classification be reviewed in the pursuit of genuine and legitimate research or in the public interest. This is not the same public interest clause that was a point of contention for many, if not all, political parties opposed to the Bill. This clause deals with a classification status review, whereas the other public interest clause called for, is to provide for a defence when information has already been disclosed. In the latter instance, the media will still be able to report on these documents and rely on a defence of public interest, should the state decide to institute action; the former would inevitably lead to journalists asking permission to publish information beforehand. See the problem? In reading Sections 24 & 25, one would once again see the tendency to work towards achieving greater power within the executive. I say this because if an application fails, the person applying may appeal to the Minister of Intelligence. Where are the courts in all of this? Chapter 8 Herein lies a legal challenge. Section 26 of the Bill imposes certain conditions and procedures on national archives and other archives but Schedule 5 Part A of the Constitution holds that archives other than national archives are within the specific legislative competence of the provinces. Section 26 is thus an unconstitutional provision.

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Chapter 9
In Chapter 9 one doesnt find too much to be discontent about. This chapter deals with the release of declassified information to the public. Also provided for in this chapter, is a national declassification authority. But other than this, critique against this chapter would be superfluous, since most of what needs to be said, has been said.

Chapter 10 Chapter 10 establishes the agency which will oversee the outlined protection of information. If the agency is not a Chapter 9 Institution, then I dont see how they can be effective in reviewing the fairness of the classification of information. Chapter 11 Section 32 provides for espionage offences. These offences include making available information that could possibly benefit a foreign state. There are 3 different degrees that could see a person sitting in jail for time periods of no less than 3 years in the lowest degree, to up to 25 years in the highest degree, which is equal to a life-sentence. It would thus enjoy the same position as treason. The harbouring of persons who have trespassed in terms of sections 32 or 33 can see the harbourer get a sentence of no less than 5 years and no more than 10. Other offences created, include conspiracy, disclosure of classified information, failure to report having classified information, provision of false information to the intelligence agency, destruction or alteration of important information and improper classification. Chapter 12 One should be glad to see that courts arent entirely removed from the equation. So any good citizen may still approach the courts for leave to have the relevant information declassified. This is however, not much consolation when one considers the following problem. X finds a particular State document which is classified (even though this is illegal) and wishes to disclose the information in Y Times on Sunday. X now needs to approach the court and ask for permission to disclose (remember, no public interest clause means X needs prior consent and not ex post facto ratification,) but then it takes 3 months to consider the document and the information is no longer relevant for example.

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Chapter 13
Admin! Admin! Admin! So what does this all mean? To reiterate the seriousness of the matter, I go back to a point that has already been made. Democracy is based on different pillars. These pillars include universal suffrage (the right to vote), freedom of speech, human dignity, equality, transparency and accountability. It is relevant to the issue, since the aim of the Bill, it would seem, is to directly remove transparency from the equation. Transparency means that one is at all times able to see what the government is up to. In recent years transparency has also become an extremely important concept, since it has developed as a key concept in corporate governance. What the whole world is striving to achieve, the ANC is trying to block out. If the media needs the permission of the ANCgovernment to first of all publish the information then two problems have arisen: 1. The medias freedom of speech has been limited and they no longer act according to the mandate that the Constitutional Court read into section 16 of the Constitution; they no longer defend democracy as they rightfully should. 2. The government closes the curtain on what they do. Government by consent is not possible if we only get to choose them and when we do, were stuck with them, without being able to scrutinise what they do. Conclusion The voting went as follows: 229 MPs voted in favour of slaughtering democracy 107 MPs voted in favour of protecting democracy 2 MPs decided they were indifferent to whether we have democracy or not Furthermore, 62 MPs were not in parliament that day

They may have won the battle, but theyll

never win the war.
These are now the sentiments of the democrats, of the media and of the constitutionalists in this fine country. Democracy will save itself, of this I am sure. There are 3 different ways in which the constitutionality of this Bill can be challenged:
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1. The National Council of Provinces could refer it back to the National Assembly, with amendments in terms of s76 of the Constitution. If the National Assembly is then dissatisfied with the amendments, they may have the Bill agreed to by a Mediation Committee or it will lapse and then they may simply pass it again. If the Bill lapses, the National Assembly would have to pass the Bill with a two-thirds majority. This does however mean, that in order to protect democracy, all of the opposition parties must be present in parliament on the day, so that the much needed 134 votes against it may prevent its passing. This will mean the death of the Protection of Information Bill. 2. But we are realists, the National Council of Provinces will in all probability pass the Bill. Section 79 of the Constitution provides that the last step of the law-making procedure is to receive the presidents assent. He may either refer the Bill back to the National Assembly (if he fears for its constitutionality which he should) or for the same reasons refer it to the Constitutional Court. We will also more than just likely see President Zuma sign this Bill into effect. 3. Section 80 of the Constitution provides that if one-third of the National Assembly (134 members) agree to have the Bill constitutionally challenged, they may directly apply to the Constitutional Court. Phantsi Information Bill! Phantsi!

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