Right2Know Campaign

​R2K Statement:​​ Parliament’s rush and President’s silence makes Secrecy Bill ‘referral’ a sham​

by · Published · Updated

The Right2Know Campaign condemns Parliament’s plan to rush the Secrecy Bill back to the President in two days.

These are the facts:

  • The President has refused to sign the Bill in its current form, saying that it is unconstitutional;
  • Although the President made mention of two clauses, it is clear that his letter raises concerns about the Bill as a whole – in other words, the President has asked Parliament to do its job and fix the Bill;
  • Until the President provides detailed information on his decision, any attempt to finalise the Secrecy Bill would be absurd;
  • Members of Parliament have taken an oath to uphold the Constitution, and yet voted through a Bill that many – including now the President’s legal advisers – have said is unconstitutional.Parliament must now redeem itself.

All MPs now have an important opportunity to fix the problems with the Secrecy Bill’s constitutionality. However, if Parliament believes this job can be done in two days, it confirms fears that the decision to refer the Secrecy Bill back to Parliament was only a delaying tactic. South Africa cannot accept a process that does not fix these problems, but instead aims to make small, cosmetic changes to a seriously flawed law.

At the same time, the President must provide a full explanation of his decision not to sign the Secrecy Bill into law: does President Zuma share the concerns of so many people that the Bill is an unconstitutional restriction of the right to access and share information?

Note: Parliament’s ad hoc committee will meet at 2pm on Wednesday, in room S35, NCOP Building. R2K members will attend to monitor the process.

For comment please contact:
R2K National Spokesperson: Murray Hunter (072 672 5468)
R2K Gauteng spokesperson: Dale McKinley (072 429 4086)
R2K KZN spokesperson: Desmond D’Sa (083 982 6939)
R2K Western Cape spokesperson: Pupa Fumba (0835385685)

BRIEFING NOTE:
Outstanding issues that Parliament must address:

• Ensure a full Public Interest Defence. The current Secrecy Bill only has narrow protection for whistleblowers and public advocates that excludes a range of matters in the public interest like shady tendering practices or improper appointments within key state agencies.

• Ensure full whistleblower protection. Under the current Secrecy Bill 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” and other offences not covered by the proposed Public Interest Defense.

• Don’t criminalise the public as spies. In the current Secrecy Bill people can be charged with “espionage”, “receiving state information unlawfully” (to benefit a foreign state), and “hostile activity” without proof that the accused intended to benefit a foreign state or hostile group or prejudice the national security; only that the accused knew or “ought reasonably to have known” that this would be a “direct or indirect” result. • Limit the Bill to the security agencies. The current Secrecy Bill still gives powers of the Minister of State Security to ​transfer​ classification powers to other state bodies (and junior officials) without adequate public consultation.

• Include a Public Domain Defense. The current Secrecy Bill effectively criminalising the population at large. When classified information becomes public it is no longer a secret. Rather than holding those responsible for keeping secrets accountable, the current Bill punishes anyone who accesses information once it has been leaked into the public domain.

• Reduce draconian sentences. The current Secrecy Bill still contains draconian sentences of up to 25 years in jail. These are out of line with international practice and will have a chilling effect on anyone in possession of information in the public interest.

• Don’t undermine the Promotion of Access to Information Act (PAIA). The procedure in the current Bill permitting applications for the declassification of classified information is in conflict with the PAIA – despite commitments from Parliament to the contrary.

• Introduce an independent review panel. The body established to review classification (a Classification Review Panel) is not independent ​enough ​ and the simple possession of classified information appears to be illegal even pending a request for declassification and access. • Let the Apartheid truth be told! Information that has been made secret in terms of old and potentially unconstitutional laws and policies will remain classified under the current Secrecy Bill pending a review for which no time limit is set. This includes information classified under the apartheid-era Protection of Information Act of 1982 and the government policy adopted in 1996, the Minimum Information Security Standards.

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