R2K Statement: Birth pains of the Secrecy Act

On Thursday 25 April – the eve of Freedom Day – the National Assembly will vote to pass the Protection of State Information Bill (the Secrecy Bill). Rather than responding to calls to replace the apartheid-era 1982 Protection of Information Act with a just and limited classification law, the National Assembly will adopt a law that is in many respects as draconian as its predecessor and goes some way to resurrect the securocrat ghosts of the apartheid past.
The Right2Know Campaign calls on MPs to remember the spirit of 27 April 1994 when we elected our first democratic government and collectively committed ourselves to open, transparent, and participatory government.

Members of the National Assembly must not betray our democracy. We call on MPs to vote with their conscious and reject the Secrecy Bill.

The Secrecy Bill only has narrow protection for whistleblowers and public advocates (not a full Public Interest Defence) that excludes a range of matters in the public interest like shady tendering practices or improper appointments within key state agencies. This half-measure fails to acknowledge the urgent need to address South Africa’s whistleblower crisis — as well as the global abuse of national security laws to protect state interests against the scrutiny of citizens.

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 Defence.

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 this would be a “direct or indirect” result.

While the Bill limits the number of agencies and people that can classify, it still gives powers of the Minister of State Security to give classification powers to other state bodies (and junior officials) without adequate public consultation.

The Secrecy Bill still lacks of a Public Domain Defence, effectively criminalising the population at large when classified information becomes public, rather than holding those responsible for keeping secrets accountable.

The Bill still contains draconian sentences of up to 25 years in jail.

The procedure permitting applications for the declassification of classified information is in conflict with the PAIA – despite commitments from the NCOP to the contrary. The body established to review this process – a Classification Review Panel – is not sufficiently independent and the simple possession of classified information appears to be illegal even pending a request for declassification and access.

Information that has been made secret in terms of old and potentially unconstitutional laws and policies will remain classified under the 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.

If passed the Bill would add to the generalised trend towards secrecy, fear and intimidation that is appearing in South Africa today.

The Right2Know campaign remains committed to challenging this legislation through any means necessary – including taking legal action – should the National Assembly vote to pass the Bill and the President sign the Secrecy Act without addressing these issues.

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For a detailed review of the Secrecy Bill click here.

For comment 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 W. Cape spokesperson: Nkwame Cedile (060 478 7563)