Right2Know Campaign

Why secrecy bill needs a public interest defence

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GARY PIENAAR: Why secrecy bill needs a public interest defence

‘The bill shuts off the state security agencies from any kind of scrutiny or accountability to the public’

STATE Security Minister Siyabonga Cwele , sheltering under the cloak of freedom of speech in Parliament, last week accused “civil society”, including the broad-based Right2Know (R2K) campaign, of being spies and agents of foreign powers for opposing the Protection of State Information Bill (the “secrecy bill”).

African National Congress (ANC) MPs Cecil Burgess, Llewellyn Landers and Ben Fihla also accused the media of purveying lies and misinformation about what is in the bill. What are the facts?

R2K’s criticisms of the latest version of the bill include:

  • Harsh prison sentences of up to 20 years, with no protection for most whistle-blowers. Those who harbour whistle-blowers may face prison sentences;

  • Anyone who comes into possession of a state secret faces up to five years in prison if they do not hand the information to the police or security services;

  • Last-minute drafting by the p arliamentary ad hoc committee dealing with the bill ensured it would trump the Promotion of Access to Information Act, which promotes citizens’ right to know;

  • The bill shuts off the state security agencies from any kind of scrutiny or accountability to the public; and

  • The bill has no public-interest defence.

Cwele says the bill strikes a balance between secrecy and openness and is aligned with the Promotion of Access to Information Act. This act, which gives effect to the constitutional right to know, says it should override every other law unless the other law explicitly provides otherwise. This bill does exactly that: it overrides the act. So this assertion by Cwele is not only inaccurate, but the opposite is true.

Cwele also claims a public-interest defence will undermine the security of the state. He argues the government will be defenceless to protect state secrets if anyone discloses classified information — even if a court subsequently finds it was unjustified. A court ruling cannot repair the damage already caused by leaking sensitive information into the public domain, he argues. Assuming Cwele honestly believes this, he is making a mountain out of a molehill. Only the extremely foolish would risk the harsh penalties included in the bill (ranging from five to 25 years in jail) if they were not convinced that the public interest was at stake. So, to prevent this highly unlikely occurrence, he and ANC MPs would rather shut down a vital tool for accountability.

Why do we think a public-interest defence is so important? After all, the bill does punish misclassification that deliberately covers up corruption and maladministration. And it does allow information to be declassified on request if it “reveals evidence of either a substantial contravention of, or failure to comply with, the law, or an imminent and serious public safety or environmental risk, and the public interest in the disclosure of the state information clearly outweighs the harm that will arise from the disclosure”. And it does allow appeals to the minister of the department involved.

While this may sound promising, the severity of punishments for legitimate disclosure still far outweigh those for unlawful concealment and the bill leaves critical details of the procedure for declassification to be decided later by ministerial discretion. Only public servants can currently refer a declassification request and there is no time limit for them to do so. If they fail to perform their duty to respond to information requests, members of the public must rely on costly legal action that only a very few can afford. This gap in the bill serves to aggravate existing bureaucratic bottlenecks for even urgent disclosures in the public interest.

Cwele’s speech omits that the bill limits lawful disclosures of classified information in the public interest to those already protected by the Protected Disclosures Act and the Companies Act. This means the bill makes it a criminal offence for a citizen who is not a public servant to disclose classified information — even to constitutionally established anticorruption agencies such as the public protector and the auditor-general. Their staff will be criminalised, as will public servants staffing the Public Service Commission’s anticorruption hotline and the Presidency’s service-delivery hotline, if reports to them include classified information.

Additionally, the checks and balances of Parliament’s oversight of the exercise of state power are neutralised, because even MPs are not protected from the offence created by the bill of merely receiving classified information that could directly or indirectly benefit a foreign state. The bill thereby gives extensive protection to security agencies, shielding them from parliamentary oversight, which is in effect neutered.

With all these legal and constitutional checks and balances sidelined, a public- interest defence is a vital bulwark against corruption and abuse. It is especially necessary when most of our elected representatives appear willing to legislate their lapdog status by voting in favour of this bill. If they realise it, do they even care?

• Pienaar is a researcher with Idasa’s Political Information and Monitoring Service. Idasa is a member of R2K.

http://www.businessday.co.za/Articles/Content.aspx?id=159256

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