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ANALYSIS: Without a public interest defence the Secrecy Bill is flawed and unconstitutional.
After the ANC's use of its majority muscle to ram the Protection of State Information Bill through the National Assembly debate continues to rage about what exactly is wrong with the draft law.
Well, there is plenty -- in fact the Bill commits seven cardinal sins. The lack of a public interest defence is a critical flaw though by no means the only problem. But let's start with it.
Since the Bill will apply to all people and not just officials charged with safeguarding state secrets, it will have an affect on the constitutional right to access information and the right to free speech.
We will all be prevented from receiving, possessing or passing on classified information in almost all circumstances.
Although the Constitution recognises that rights, including those of information and free speech, may be limited, it also says any limitation should be as unobtrusive as possible and square with democratic practice.
The "Secrecy Bill" fails this test. If the intrusion is so wide as to affect all persons there should be appropriate democratic safeguards.
No public interest defence...
The most obvious of these is a public interest defence, which is not a carte blanche to proliferate state secrets but an opportunity for someone facing charges to argue that the public's interest in disclosure outweighs the state's interest in the matter being protected.
Another safeguard is a public domain defence. Again, this would not give carte blanche to spread state secrets just because someone else has already revealed them, but rather create an opportunity to show that no significant damage would result from further disclosure.
Without these two defences the consequences are democratically untenable -- and, in fact, absurd.
South Africa had a taste of this when presidential spokesman Mac Maharaj prevented the Mail & Guardian from publishing information relating to questioning by the Scorpions in 2003, and subsequently laid criminal charges against amaBhungane managing partners Sam Sole and Stefaans Brümmer and the newspaper.
Section 41(6) of the National Prosecuting Authority Act -- the National Prosecuting Authority's own secrecy law -- is framed in such absolute terms that Sole, Brümmer and the M&G cannot argue that they wished to disclose a serious crime allegedly committed by Maharaj, nor that both Majaraj and City Press had previously placed some of the information in the public domain.
Another example: in the United States, ordinary people, including journalists, were not prevented from repeating the details of diplomatic cables leaked by WikiLeaks.
How absurd if the world downloaded, discussed and passed on the cables, while American journalists and citizens were jailed for doing the same. Well, if the Secrecy Bill became law, that is exactly what would happen with our own WikiLeaks.
...and six other problems
Other problems with the Bill include:
It gives the state security minister too much power, including extending the right to classify information to any organ of state. The criteria for such a decision are not spelled out;
The sentences are harsh: 25 years in jail for the disclosure of "top secret" information, 15 years for "secret" information, and five years if it is classified "confidential"; if the offender "should have known" that this would "directly or indirectly" benefit another state or non-state actor or prejudice national security. Even possession or disclosure, regardless of whether there is prejudice, can translate into jail terms of up to five years. And if that possession or disclosure is in respect of information classified by the State Security Agency, the penalty rises to 10 years;
"Harbouring and concealing" someone whom you "suspect" is guilty of a security offence can result in imprisonment of up to 10 years;
The state argues that the public's right to information is met by the Promotion of Access to Information Act (Paia) and the whistle-blower provisions of the Protected Disclosures Act and Companies Act. But the Secrecy Bill undermines this by overriding Paia whenever there is a clash, while the tiny fig leaf of the whistle-blower provisions applies only to the most minor offence, simple disclosure;
While the Bill's scope has ostensibly been narrowed to national security matters only, this is eroded by the introduction of broad concepts such as "economic, scientific or technological secrets vital to the Republic" and "state security matters", defined as anything and everything the State Security Agency considers its business; and
The classification review panel is a welcome introduction to the Bill. But it is not truly independent, given that it is chosen by and reports to Parliament's joint standing committee on intelligence, which works behind a veil of secrecy and tends to operate as an adjunct to the intelligence services.
The Secrecy Bill is unconstitutional and steeped in absurdities. If passed in its present form it would create a fearful and secretive society.
Whistle-blowers would think twice before handing over documents for exposure or publication. The average citizen's access to information would shrink.
A tame media would censor itself, while bold journalists would go to jail. There wouldn't be less corruption but you would read less about it. In the end, the Bill would strangle democracy.
