Why the Secrecy Bill is probably (still) unconstitutional

If newspaper reports (and the non-denial denial by an ANC spokesperson this morning) can be believed, the ANC caucus in Parliament might well refer the Secrecy Bill back to the ad hoc committee who had worked on it to iron out some of the serious problems that remain with the Bill. It must be said that the Bill now before Parliament is a much improved version of the shockingly draconian version first introduced (and laughingly certified as constitutionally compliant by the State Law Advisor) earlier this year.

Instead of an absurdly broad provision that would have allowed for the classification of documents for almost any purpose, the Bill now restricts valid classification of documents to cases where national security is threatened. National security is now defined far more narrowly than before and includes:

(a) the protection of the people of the Republic and the territorial integrity of the Republic against: the threat of use of force or the use of force;
(b) the following acts:
(i) Hostile acts of foreign intervention directed at undermining the constitutional order of the Republic;
(ii) terrorism or terrorist related activities;
(iii) espionage;
(iv) exposure of a state security matter with the intention of undermining the constitutional order of the Republic;
(v) exposure of economic, scientific or technological secrets vital to the Republic:
(vi) sabotage; and
(vii) serious violence directed at overthrowing the constitutional order of the Republic;
(c) acts directed at undermining the capacity of the Republic to respond to the use of, or the threat of the use of, force and carrying out of the Republic’s responsibilities to any foreign country and international organisations in relation to any of the matters referred to in this definition, whether directed from, or committed within, the Republic or not, but does not include lawful political activity, advocacy, protest or dissent.

If this Bill is passed and if documents are going to be classified in terms of the new Act in an honest way and in compliance with the provisions of the Act, it will not be possible to classify material merely with the aim of hiding corruption and maladministration or embarrasing details about policy cock-ups, nepotism or the wasteful and venal misuse of state funds for personal glory or enrichment.

But the assumption here is that everyone involved in classifying documents and reviewing such classifications will act like proverbial angels. This is not a plausible assumption to make. Section 3(2) of the Bill states that the provisions of the Bill regarding classification and reclassification only applies to security services, unless an organ of state (which will include any government department or ministry and any municipality) is given permission to classify documents. Currently any Minister can and does classify documents and there is little doubt that Ministers would not want to lose this power, which gives them the appearance of glamour, status and power. (I mean, how James Bond can you get: the glamour of letting slip over drinks that one has just classified a documents as secret or top secret would surely seduce all but the most upright and no-nonsense individual.)

Although the Natal Sharks Board or the University of Cape Town will probably not apply for an exemption in terms of section 3(2), all the important institutions (those who might want to use the provisions of the Act to hide important information from the public and could be trusted the least to apply the Act honestly) will probably apply for permission to use the Act to classify documents it thinks the public should not have access to. Big municipalities will want to classify documents that might reveal how many open toilets it had built or how much money it has spent on upgrading roads in the posh suburbs and Ministers would want to classify documents that reveal long stays at the Mount Nelson Hotel and exorbitant trips to go and visit drug dealing girlfriends in prisons in Switzerland.

Now, it must be conceded that section 19 of the Bill allows anyone to make a request for access to documents which have been wrongly classified. The head of an organ of state must then review the classification of the documents. Section 19(3) contains an excellent provision which states that the head of the organ of state concerned must declassify the classified documents and must grant the request for state information if that state information reveals evidence of “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”.

Where Ministers are honest, diligent and prepared only to act in the public interest and not only in the interest of themselves, the governing party or officials aligned to the governing party (and are equally prepared to act with no concern for their political futures), this clause will go a long way to safeguard against wrong and unlawful classification of documents which were classified only to hide wrongdoing or corruption (although it would not address cases where documents were wrongly classified to hide maladministration, wasteful spending, embarrassingly inept governance or shockingly self-important actions on the part of Ministers or officials).

But these provisions assume a rather remarkable and unrealistic degree of honesty and selflessness on the part of the heads of organs of state. Human nature being what it is, these safeguards will probably not do the trick to prevent unlawful classification of documents aimed at hiding nepotism and corruption. One would therefore have thought that the Bill would allow for a credible appeals process to an independent body to protect citizens from the understandably self-serving actions of Ministers. However, section 31 only allows anyone who believes a document had been wrongly classified to appeal to the relevant head of the organ of state (usually the Minister involved). Section 32 allows a person also to approach a relevant court once the appeals process has been exhausted.

But here is where things get tricky. How will such an appeal work in practice? If one claimed that a certain document exists, that the document has been wrongly or unlawfully classified and that one is challenging that classification, one would first have to approach the relevant Minister (in whose department the corruption, maladministration or wasteful expenditure revealed by the wrongly classified document occurred) and then one would have to approach a court. But one might well be told that such a document does not exist. If one argues that the document does indeed exist because one has seen it, one would be confessing to having committed a serious crime or that one is continuing to commit a serious crime – unless one has handed the document to the SAPS as required by section 15 of the Act as soon as one received it (without really taking notes about its content).

This is because section 36 to 38 of the Bill states that it would be a criminal offense unlawfully and intentionally to communicate, deliver or make available state information or to receive such information if it was classified (rightly or wrongly) as confidential, secret or top secret and if one knew or ought reasonably to have known that the documents were so classified. These sections prescribe prison sentences of between 3 and 25 years for leaking such documents or for receiving such leaked documents.

A whistle-blower would be either suicidal or exceedingly stupid to try and leak wrongly classified documents as that whistle-blower would face a prison sentence of up to 25 years – even in cases where the documents were wrongly classified in order to hide corruption, criminality or nepotism. And a journalist or member of – say – COSATU or the Public protector’s office – would equally be monumentally stupid to receive such information as he or she might face the same Kafkaesque situation in which he or she would risk a long prison sentence if it transpires that the document (whose classification he or she is challenging) is in fact in his or her possession.

The option would remain to immediately hand the leaked document to the police and then to challenge the classification in terms of section 19(3) or section 31 or 32 of the Act. Of course, it is not clear how the police would react when handed such a document. A journalist who hands in a document that is classified top secret will surely be asked where he or she got this document from and if the journalist then refuses to confess who the whistle-blower was, that journalist would face severe pressure to reveal his or her source. Would any whistle-blower take the risk of trusting a journalist by leaking documents – even wrongly classified ones – to that journalist if that whistle-blower could face a very long jail term indeed if it ever transpired what his or her identity is.

The chilling effect on a free press and on the right of access to information will be severe. The more trouble a government finds itself in the more likely it would be that it would try and misuse this Act to cover up maladministration and corruption. The end result would be that open, accountable and transparent government would be fatally undermined. Although the Bill as it stands is a vast improvment on the Bill which was first considered, it is not yet clearly compliant with the Constitution.

Because our Constitutional Court does not only look at the provisions of an Act in isolation when it considers the constitutionality of an Act, but also at the impact of those provisions on the impugned rights, the practical concerns (some of them raised above) will loom large in any constitutional challenge to this Bill. In doing so the Court will not assume the worst of our public representatives, but nor will it assume that these representatives will have super-human abilities to act selflessly and against their own personal ambitions and interests.

I suspect that applying such a test, the Court might well find that the Bill as it stands will have an unnecessary chilling effect on the right to freedom of expression and the right of access to information as the stated goals of the Bill could be achieved by employing potentially less restrictive means that would provide better safeguards against abuses of the classification system.

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