Thursday, 6 December 2012

Secrecy Bill Update

The so called South African Secrecy Bill (Protection of State Information Bill) [pdf file] was accpeted by the South African Parliament’s National Council of Provinces (NCOP) on 29 November 2012, by a margain of 34 to 16, bringing the legislation two steps away from being formally signed into law.

The legislation, since it was initially introduced by then Minister of State Security Ronnie Kasrils in 2008, has lurched along garnering global attention. 

It is designed to replace outdated apardheidt era spy law bringing South Africa in line with the majority of modern society.  However, critics argue the severe nature of its implementation will discourage whistelblowers, chill free speech and create an environment within which corruption will continue to flourish. It is argued that definitions are overly wide and penalties in the Bill are excessively stiff, including 25 years in prison. The matter is now drawing to its inevitable conclusion and has become rather emotive.

Some have asked the journos to stop whinging and look at the benefit, while most media outlets have focused on the nefarious practical implications of the proposed Secrecy Bill. The Britania Encylopedia destroying Wikipedia has even referred to the South African legislation as highly contravesial.

I think most would conceed that legislation of this type is required in a constitutional democracy. Partiucalry in modern society where information is available at the click of a mouse or the push of a button. Equally important in that same equation is freedom of expression. These two competing interests (state security versus freedom of expression) are said to be difficult to balance but as a general principal, if freedom of expression is to prevail where a public interest exists, potential abuse of secrecy laws by state organs can be minimized. Now, the devil is always in the detail, but with public interest as a guiding principal, we cannot go far wrong as a modern society.

Similarly, if information is already in the public domain, it does appear overly harsh to criminally prosecute repition of this information; especially in the Google age. The two concerns I allude to, namely, a public interest defence and a defence relating to information already in the public domain are two of the key concerns raised by opponents of the Bill.  But, there are many more complaints – see the Right to Know Campaign, which has a plethora of analysis and infromation availavle on the subject.
Conversely, politicians pushing for the Bill to be put on the books as an Act of Parliament state that it is current international best practice and increasingly required in a post 9/11 environment.  Further, the ruling African National Congress (ANC) has stated that it has been “more than fair” in entertaining criticism of the Bill and ANC officials have publicly stated confidence in the Bill passing constitutional muster if required.   
It does appear as if the ANC is now hurrying this along, with the Bill being condemned by as diverse a person as the former Ireland Prime Minister. In trying to pass the Bill in parliament two weeks ago, a document that could have been engineered in a James Bond lab, “Myths about the Protection of State Information Bill”, was handed out to parlimentarians before the vote.  It was without logo or author, and on the face of it flawed.  If decisions are based on this sort of material, it is deeply distrurbing. See for instance, an image courtesy of the Right to Know website:

secrecy bill south Africa

Well, it is indeed a fact that the clause above is in the Bill. However, the clause above is not a public interest defence. It is a clause relating to the classification of information; it is not an overarching defence clause. The entire document appears to show similar misrepresentations with some parts of the country under the mistaken belief that the amended Bill contains “a public interest defence”.  It does contain a public interest consideration insofar as classification of information is concerned but it is not a defence.
Be that as it may, the main opposition to the ANC, the Democratic Alliance (DA) has said it vows to fight the Secrecy Bill listing the format it will accept. The Right to Know Campaign is driving civil society to stand up against promulgation of the Bill and even close ANC ally, the Congress of South African Trade Unions (COSATU) has voiced recent concerns.
With the context in mind, the acceptance of the Secrecy Bill last month was widely reported on in a critical manner, both in South Africa and abroad. Ultimately, the Bill was passed by a vote of 34 to 16 with no one sitting on the fence and refusing to vote.  In the new year, the Bill will be put before the National Assembly and then the president’s signature will be sought to complete formalities.  It is likely that it will proceed to an Act of Parliament and be constitutionally challenged by opposition political parties and NGO’s.  This will be a seminal moment in South African constitutional history and shape the future of our democracy. Watch this space!
In closing, consider this quote from South Africa’s first constitutional court judgment dealing squarely with freedom of expression, the matter of South African National Defence Union v Minister of Defence:
[f]reedom of expression lies at the heart of democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters…”

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