Trump bans Muslims and we claim that this is un-American, that we are not this. I don’t have to talk up “ancient” history to show that we are. I won’t bring up settler colonialism, genocide, and land theft, or harp on slavery, or internment camps for Japanese-Americans. I won’t refer to the Page Act banning those deemed “undesirable,” the Chinese Exclusion Act, the Asiatic Barred Zone Act, or the Emergency Quota Act. I don’t have to mention the hundreds of thousands of Mexicans deported in the nineteen-thirties… I won’t mention any of this, because this happened so long ago. We can always delude ourselves by saying that America was this but now we are better. Let me just say that in 2010 and 2011, state legislatures passed a hundred and sixty-four anti-immigration laws..
The ‘Secrecy Bill’: taking stock
8 June 2012
Progress at last?
When two Nobel Laureates, an eminent constitutional lawyer and the Secretary General of COSATU are unified in their stinging criticism of a proposed Bill, perhaps the time has come for a redraft? At last, some 293 condemnatory submissions to the NCOP’s Ad Hoc Committee later, it appears the ANC has finally stirred from its legislative slumber.
In an unexpected volte-face at Committee deliberations last month, the ANC tabled a raft of amendments to the current draft of the controversial Protection of State Information Bill. The most significant proposal is the inclusion of a narrow public interest defence in relation to a Clause 43 charge of unlawful disclosure of classified information. By virtue of this amendment, an accused would also be able to rely on a defence of ‘wrongful classification’, rectifying another major problem with the Bill. Other key amendments proposed include the scrapping of minimum sentencing tariffs and the intolerably low mens rea of constructive knowledge – “ought reasonably to know” – from many of the offence-creating provisions. Last but not least, time limits will be imposed for processing requests to access classified information.
Although these proposals are certainly cause for cautious optimism, for the reasons detailed below, this latest draft of the Bill remains an unconstitutional erosion of the right to freedom of expression and access to state information in breach of sections 16 and 32 of the Constitution respectively.
Public Interest Defence not fit for purpose
Clause 2(b) of the Bill clearly conveys the complex balancing act involved when considering the disclosure of potentially sensitive government information. It states: “The objects of this Act are to… promote transparency and accountability in governance while recognising that state information may be protected from disclosure in order to safeguard the national security of the Republic”. However, despite Clause 6 expressly acknowledging that access to state information is a basic right which advances human dignity and may even promote safety and security, the balancing act demanded by Clause 2(b) has, to date, come down firmly on the side of protecting national security.
While the inclusion of a public interest defence would go some way to redressing this imbalance, the ambit of the defence proposed by the ANC affords inadequate protection to those who expose matters of genuine public concern. According to the ANC’s proposed amendment, individuals who disclose classified information which “reveals criminal activity, including criminal activity for ulterior purposes listed in sections 14 and 47 of this Act [improper classification]” will not be guilty of an offence under Clause 43.
Three fundamental problems arise. The most obvious flaw with the proposed defence is that it sets an unnecessarily high threshold for lawful disclosure, namely, criminality. It is possible to envisage numerous scenarios, ranging from actions which pose a risk to human life to shady tendering practices, where open and transparent government is served by the disclosure of sensitive information, despite such conduct falling short of a criminal offence. Such a narrow definition of the ‘public interest’ is also out of sync with more expansive definitions to be found in South African legislation, in particular, section 46 of the Promotion of Access to Information Act 2000 and section 31(5)(b) of the National Environmental Management Act 1998. In the context of the current debate, it is striking that the latter creates an extremely broad public interest defence for environmental whistleblowers – seemingly without controversy.
Another critical problem with the Bill is the mismatch between the breadth of the proposed defence and the criteria for mandatory declassification under Clause 19 – which includes information that discloses “an imminent and serious public safety or environmental risk”. The net result of this inconsistency is that an individual may be deprived of his or her liberty for disclosing information which a minister was in fact duty bound to declassify under Clause 19! Hardly the hallmark of a reasonable and justifiable limitation on the right to freedom of expression, as demanded by section 36 of the Constitution.
Finally, the failure to extend any public interest defence to security sector employees charged with unlawful disclose of a ‘state security matter’ under Clause 49 of the Bill constitutes another significant shortcoming of the recent proposals. Contrary to Government assertions in their December 2011 advertorial that “no country has included such a reckless practice” (referring to the inclusion of a public interest defence per se), Canada has specifically legislated for such a defence where government employees, including members of the Security Intelligence Service, disclose classified information in the public interest: see section 15 of their Security of Information Act 1985.
Even in a jurisdiction such as England – where the law does not provide an express public interest defence in response to a charge under the Official Secrets Act 1989 – there remain effective avenues for impartial consideration of the public interest. In R v Shayler  UKHL 11, the House of Lords stressed that any judicial review of an employer’s refusal to authorise disclosure of classified information requires a court or tribunal to carefully consider whether the public interest favours disclosure. Further, the availability of extensive ‘internal’ reporting mechanisms – lacking in the Secrecy Bill – ensure the Act strikes the correct balance between freedom of speech and national security (paras 27-36 and 79).
As the European Court of Human Rights recognised in Guja v Moldova  ECHR 14277/04, a civil servant may be “the only person, or part of a small category of persons, aware of what is happening at work” and “thus best placed to act in the public interest by alerting the employer or the public at large”. Accordingly, as a measure of last resort, disclosure of confidential and secret information may be permissible in certain circumstances (see paras 69-78). The provision of formidable classification powers in the Secrecy Bill will enable intelligence agencies so inclined, to hide behind a veil of secrecy in order to avoid the normal processes of public oversight. Whistle-blowing may therefore be a vital, if not the only, means of holding Government to account.
As highlighted in numerous submissions to the Ad Hoc Committee, the Promotion of Access to Information Act 2000 (‘PAIA’) is the ‘constitutionally-mandated’ statute which codifies the right to access state information provided for in section 32 of the Constitution. Section 5 of PAIA is clear that the Act reigns supreme over other statutes which are materially inconsistent with PAIA or otherwise purport to restrict access to state information. As Mr Gunda of the Independent Democrats put it at the recent Committee debates, PAIA was drafted in terms of a specific constitutional provision and thus it was not correct to attempt to override the Act.
However, in spite of the ANC acknowledging the need to at least balance these two pieces of legislation, it seems the Bill is still on a constitutional collision course with PAIA. As a result of an eleventh hour amendment before the Bill was passed by the National Assembly, Clause 1(4) ensures the Bill now trumps PAIA in the event of a conflict regarding the disclosure of classified information. In order to appreciate quite the magnitude of this erosion of the right to access state information, consider the fact that the drafters of PAIA chose not to include the State Security Agency as one of the exempted organisations under section 12 of the Act. Moreover, by contrast with the mandatory grounds for refusal of information under PAIA (e.g. protection of safety of individuals and property under section 38), ‘defence, security and international relations’ are only discretionary grounds justifying refusal (PAIA, section 41), indicating that security sector information does not automatically warrant protection from prying eyes.
Quite apart from the unconstitutionality of Clause 1(4) itself, what are the practical consequences of this legislative clash for a government official faced with a freedom of information request relating to classified information? According to PAIA, the official should methodically assess whether one of the mandatory or discretionary grounds for refusal exist under Chapter 4 of the Act. As previously noted, PAIA permits consideration of defence, security and even economic interests of the Republic in this context. But what if the ‘borderline’ disclosable material reveals politically sensitive information which a minister would prefer did not come to light before the next election? Well, happily for any unscrupulous minister, Clause 34(2) of the Bill provides a ‘get out of jail’ card: he or she can now refuse – or at least stall – access to the information merely on the grounds that it is ‘classified’. Put another way, the starting point will become non-disclosure, not transparency.
Dilemma number two: should the minister give reasons for his refusal? The Bill is silent on the matter – in theory therefore, absent a conflict between PAIA and the Bill, section 25(3) of PAIA (requiring reasons to be given) continues to bite. However, the fact that the ANC recently rejected the inclusion of a specific clause to this effect in the Bill bodes ill in this regard. Finally, what if fifty-seven pages of a sixty page document contain no sensitive material and accordingly should be declassified and disclosed under Clauses 14 and 19 of the Bill? Section 28 of PAIA sets the precedent for the severability of such a document and yet the ANC will not, for the time being, sanction such an approach. So much then for respecting the primacy of PAIA…
As the Preamble to PAIA notes, the system of government in South Africa before 27 April 1994 resulted in a secretive and unresponsive culture in public bodies which often led to an abuse of power and human rights violations. PAIA 2000 was therefore enacted to “foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information; [and] to actively promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all of their rights.” In light of the far-reaching powers given to the State Security Agency, many of which – such as covert surveillance – have the inherent capacity to infringe human rights, the need for transparency and accountability in this area of government is surely all the more crucial?
In defence of maintaining the status quo, supporters of the current draft of the Bill will doubtless point to Chapter 5 – the provisions on classification and declassification – stating that information will only be classified in the first instance if its disclosure would cause demonstrable harm to national security. In other words, there are checks and balances within the Bill which will prevent abuse by government officials, in particular Clause 14(2) and the penalties for ‘improper classification’. The difficulty with this argument is that it places considerable reliance on the integrity and capabilities of the initial classifier and subsequent reviewer – a perilous approach in a relatively nascent democracy where the quality of administrative decision-making still leaves a lot to be desired. Further, the wide classification powers provided for in the Bill make the scope for error and/or abuse by a corrupt official all the more realistic a possibility. The significant cost and delay involved in appealing a refusal will more often than not render these safeguards against abuse nugatory.
Though the wording of various clauses will now be tightened up – for example, replacing ‘includes’ with ‘means’ in Clause 1 to indicate an exhaustive list of definitions – the Bill remains a patchwork of incoherent and imprecisely-drafted provisions. The consequence is legislation which is unduly restrictive of the right to freedom of expression and access to state information.
On the one hand there is a failure to define key concepts such as the meaning of ‘benefit’ in Clauses 36 (espionage) and 38 (hostile activity offences). By contrast, other fundamental notions such as ‘national security’ have been given overly-expansive and/or vague definitions. Another loophole of crucial practical significance is the fact that none of the offence-creating provisions, bar Clause 49(a), clearly state to whom the disclosure must be made in order for it to be unlawful. Is disclosure by a state employee to another government department or the Public Protector also prohibited by the Bill? Hopefully a mere drafting oversight, for whilst there may be some material which is so highly confidential it permits no disclosure, clearly this must be the exception, not the rule.
The Bill also casts a wide net in terms of potential offenders – criminalising both members of the public and state employees alike – notably, without the safety valve of a broader public interest defence. The fact that proof of actual harm and/or intent to harm is not necessary to convict a member of the public under the Bill also breaches international standards of best practice.
Lastly, a word on the transitional provisions: Clause 55(2) of the Bill provides that information classified under the old apartheid-era legislation retains this status pending review by the relevant minister. However, unless the offence of possession is exempted from this clause, scores of researchers, journalists and academics who possess such material will be automatically rendered criminals as soon as the Bill becomes law. Given the courageous role played by many such individuals in revealing the true horrors of apartheid, this is an Alice in Wonderland scenario if ever there was one!
Looking to the future
The Ad Hoc Committee is due to conclude its review of the Bill on 30 June 2012, following which any amendments will be sent back to the National Assembly for approval. Unless significant further changes are made, it seems likely that, one way or another, the Bill is heading for review by the Constitutional Court. Assuming President Zuma does not succeed in his current threat to severely curtail the Court’s powers, there is also every possibility the Court will determine that the Bill does not meet the lofty expectations of transparent governance embodied in the Constitution.
One thing is for certain. In a society where in living memory law was used to legitimise oppression and censorship with the most heartbreaking of consequences, the negative symbolism of legislation which appears to nudge open, even slightly, the door to the arbitrary use and abuse of power cannot be underestimated and should not be tolerated. Or, as eloquently summed up by one protester’s placard outside Parliament last November: “The only thing needed for evil to triumph is for good people to be silent… or silenced!”.
*Advocate, Bar of England and Wales, specialising in public and employment law
Legal Resources Centre Intern, Cape Town, Autumn 2011BACK TO TOP