How to fix the Secrecy Bill and make it constitutionally compliant

The South African democracy is founded, inter alia, on the values of “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”. The notion of open, accountable and transparent government runs like a golden thread through the Constitution which contains several specific provisions to give effect to these values. To this end the Bill of Rights contains two specific clauses that guarantees open, transparent and accountable government.

Section 16 of the Bill of Rights guarantees for everyone the right “to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research”. Section 32 guarantees for everyone the right to access  “any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights”.

The Bill of Rights, it must be noted, does not say that only some people have a right to access information held by the state, neither does it state that everyone has a right to access only that information held by the state which the government of the day believes the population could be trusted with. These provisions are sweeping and all-encompassing, giving substance to the notion of an open and democratic society established by our Constitution. Any legislation that curtails the freedom of the media to inform the public and (just as important) the freedom of ordinary people to access or receive and impart information, infringes on the right guaranteed in section 16. Legislation that prohibits people from accessing any information by the state similarly infringes on section 32 of the Bill of Rights.

There can therefore be little argument that the Secrecy Bill infringes on these two rights which the Constitutional Court has stated is pivotal for the proper functioning of the democracy. However, no right is absolute and can be limited but only to the extent that the limitation is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose”.

At the heart of the Secrecy Bill debate is whether the limitation on our rights contained in it conforms to what is acceptable in an open and democratic society and whether less invasive measures could have been employed to achieve a legitimate purpose of restricting some state information in order to protect South Africans from terrorism and other attacks and to protect us from attacks agains the constitutional order itself (attacks, it might be add, which can easily emanate form the security and intelligence services itself – just as the people of Egypt). Any restrictions that go beyond this will not pass constitutional muster. Where the restrictions are over broad, they cannot be justified. That is why the Secrecy Bill, in my view at least, is clearly unconstitutional. Let me explain.

Section 12 of the Bill allows various organs of state (the military, the police, the intelligence services and any other government department or organ of state given permission to do so) to classify documents when it could cause harm to South Africa’s national security. The first problem with the Bill is that “national security” is defined too broadly. It states that “national security” includes the protection of the people of the Republic and the territorial integrity of the Republic against various threats, including “exposure of economic, scientific or technological secrets vital to the Republic”. This definition is over broad in three distinct ways.

First, the word “includes” must be deleted as it suggests that the definition does not contain a closed list of factors that constitutes national security but is open ended. This gives classifying bodies the right to “invent” other national security concerns as it sees fit — even when these have not been included in the definition contained in the Bill.

This must be read with section 14(3), which must also be deleted. This section states that:

Read with the open-ended definition of “national security”, this section invites spies, the military and the police to turn South Africa into a secretive police state. It allows the security services to classify almost any document about its activities. If rogue elements in the security services use underhand methods to spy on citizens; to use dirty tricks against legitimate political opponents and social movements and to target them unfairly for criminal investigation; to undermine opponents of one or another faction within the governing party, these provisions would allow them to classify all documents relating to that.

It would also allow ministers and the top brass of the military and the policy to draw a veil of secrecy over their own activities, including their travel and their spending on hotels and other luxuries. Lastly, it would also allow the state to hide any information about money donated by a foreign government to the governing party or to ministers, state officials or the President; bribes given by a foreign company to government officials, ministers opt the President or any information about any contract concluded with a foreign company — which in future would include almost all aspects of arms sales by or to South Africa.

Section 3 should also be amended. At the moment it allows all security services (including those trusted police commissioners who seem to be so fond of crooks) from classifying documents and also allows the MInister of State Security to give permission to any other organ of state (from each municipality and government department, to the Natal Sharks Board) to classify documents. Only the Minister of State Security should be given this power and only for documents in possession of the intelligence services.

Section 15 and 43 are also over broad and hence unconstitutional. Section 15 states that a person who is in possession of a classified “record knowing that such record has been unlawfully communicated, delivered or made available other than in the manner and for the purposes contemplated in this Act… must report such possession and return such record to a member of the South African Police Service or the Agency to be dealt with in the prescribed manner”. Anyone who fails to do so commits a crime for which he or she could be sent to jail for 5 years. Section 43 prohibits many categories of people (excluding whistle-blowers in the employment of the state who complies with the strict provisions of the whistle-blower act, but including all members of the media) from disclosing the content of classified documents and anyone who contravenes this section could be sent to jail for 5 years.

Thus a person would be criminally liable if he or she is in possession of the document or makes that document public even if the document was wrongly classified to cover up corruption, authoritarian actions by the security services or to hide illegal activities or maladministration by the securocrats or the police. There are two ways to deal with this. Both are plausible and easily achievable by the legislature.

First, a limited public interest defence can be written into the Bill which will set out criteria for when classified documents could be lawfully possessed and published because it was in the public interest to do so. Such a section could list situations in which possession and publication will be allowed. This could include when documents are classified merely to cover up corruption or maladministration; where it reveals criminal activity on the part of individuals inside and outside the government; where documents reveal actions by officials or politicians that have the potential to undermine the constitutional democracy; or when the documents reveal actions which endanger the lives of citizens. This could all be made subject to a very carefully crafted limitations stating that this publication will only be justifiable if the public interest in publishing the information outweighs the interest of the state in keeping it  secret.

Alternatively the Bill could state that where documents are wrongly classified to cover up corruption, illegal activity or activities that undermine democracy or where the classification was never justified in terms of the act (something that can be determined by a court on objective grounds), a person could not be prosecuted for leaking or publishing the documents. I prefer the first option but perhaps the second option would go some way to limit the far-reaching effects of this legislation.

Lastly, the sections on the Classification Review Panel will have to be redrafted, especially sections 22(3)-(5) and section 24. This panel is empowered to review classification decisions and in order for it to provide the intended safeguard against wrongful or criminal classification of documents, it would need to be absolutely independent. These sections allow the majority party in the National Assembly to appoint the panel and to remove any of its members. This means that the panel van never be perceived to be independent and will be prone to political manipulation. To fix these sections, it could be rewritten to allow for the appointed (and the removal) of members of the review panel by 75% majority of members of the National Assembly. Alternatively, some other mechanism requiring consensus of all the major parties in the National Assembly to appoint and remove the members of the Review Panel is needed.

I believe these amendments would go a long way to restrict the ambit of the Act and if these amendments are made by the NCOP (or by the National Assembly after the President has referred it back to the National Assembly because of its unconstitutionality) it might pass constitutional muster. If not, the President must not complain that the Constitutional Court unlawfully makes policy by declaring invalid acts passed by the Parliament when it finds aspects of this Bill unconstitutional. All that is needed is for cool heads to listen to sound advice. It was offered here and elsewhere. Now it must just be acted upon.

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