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to the Secrecy Bill
By Ruhan Robinson
Brought to you by The ChirpRoom, a dynamic youth politics blog
2 This is a Fair Act of Parliament Introduction Let’s be honest: every liberal.” ~ Author Unknown The Bill goes further in defining different classes of information. Chapter 1 As with any Act of Parliament. the person empowered to classify information and state documents. s2(b) is already an issue for me. what does the Bill say? I will attempt to answer this question by reading it. which sets out its objects. constitutionalist. as “a head of an organ of state” or any person to whom such authority was delegated by the head in writing. but do we really know what we are fighting against? We got #BlackTuesday trending on Twitter and we all wore our black in support of the cause. i. with terms and descriptions that are usually found in spy-thrillers: “Confidential information” and “Top Secret” being merely two of these. The problem being that it purports to “promote transparency and accountability in governance. is what are we fighting against. i. It’s all wonderful to be ensured time and time again. a dynamic youth politics blog . the Bill starts out by giving definitions to terms for purposes of the Bill.e. Fighting for a good cause is wonderful. since the provisions of the Bill are to decide the fate of the future of South Africans’ freedom of speech and the press freedom which we so badly need. All of this is wonderful and the passing of the Bill by parliament could very possibly shake the young South African democracy all the way down into its foundations. even? “Censorship offends me. that the Protection of Information Bill will not be a coverup for corruption. When moving on to section 2 of the Bill. whichever term is preferred. journalist and concerned citizen took up the issue of media freedom on Tuesday 22 November 2011. Brought to you by The ChirpRoom. Now the first problem that arises is the fact that there is a need for classification at all. so you don’t have to. and the second point: the fact that “a head” has to decide this. but the Bill defines a classification authority. the day we termed Black Tuesday. So? The question that remains.” As far as I’m concerned. Absolute power corrupts absolutely? Absolute power to absolutely hide corruption.e. I do not believe that the definitions section is to be focused on too much. this is not at all an object of the Bill. piece of legislation or statute.
boisterously proclaiming human rights as the basis of the Bill and individuals’ right to access to information. Chapter 2 In this chapter the legislature sets out the general principles of state information. We will look at the sanctions of these “unlawful disclosures” in more detail below and in the meantime look at further principles. destruction. in the business of saving lives or furthering national interests abroad? Not? Then why does it need to have any protection whatsoever? Chapter 3 This chapter deals with the procedure and time limits to be applied to enforcing the Bill to fully give effect to its provisions. declassify and downgrade information. parliament inadvertently also delegates the part pertaining to the designation of classes of information to the executive. Well this is good. alteration or loss. protect freedom (while limiting it?). this is now an executive decision. because this is what the entire Black Tuesday campaign was based on. Here the legislature makes its intentions with the Bill clear. the power has shifted from the legislature to the executive. what exactly would the need for the likes of ESKOM or Denel be to “protect” their information? Is ESKOM. which he may by way of notice in the Government Gazette apply to the relevant organ of state. isn’t it? Our information may not be destroyed or altered. The Brought to you by The ChirpRoom. who must within 12 months set out broad categories of information that may be classified. within the scope of the categories set forward by the Minister of Intelligence. It then delegates legislative power to the Minister of Intelligence to provide for certain exceptions. a dynamic youth politics blog . Do not let the word “unlawful” fool you. In section 6. But then “unlawful disclosure” is more insidious than it seems now. Although the Minister is accountable to parliament in terms of s92(2) of the Constitution. If I am to understand this section correctly. There will be no voting in parliament as to what categories of information are to be applied. The Bill goes on to say that there must exist some confidentiality to save lives. it says in section 4 that state information may be protected against unlawful disclosure. may be protected and what may not be protected. the Bill further sets out the principles to be followed. The Bill delegates legislative power to the Minister of Intelligence. I feel it necessary to point out that if the executive is delegated the power to broadly prescribe these categories. In section 8.3 Finally in section 3 of Bill. the Bill delegates the power to classify. to bring criminals to justice and engage in effective government and diplomacy. as a parastatal. the problem is that through the enactment of the piece of legislation that is the Bill. it holds that the Bill is applicable to all organs of state and binds all natural and juristic persons. On this note.
It is thus possible to say that if another arms deal scenario would ever arise.” An example: South Africa could continue selling weapons to pariah states. the maintenance of all things owned and maintained by the state for the public. may be classified as such from the get-go. as you will see below. So. since they exercise the power to “protect” this information? Surely if these entities are to be used for public benefit. then surely this is not transparent and with being disenfranchised of accessing the information. i. In order to have accountability. Chapter 5 Section 11 sets out the ambit of “sensitive information. but delegating the process of classifying information solely to the discretion of the executive to me is a scary thought. a dynamic youth politics blog . we need transparency.” But the ambit. Democracy also requires accountability. is one that doesn’t quite align with the objects of the Act. how could they possibly hold the government accountable for their actions? Then there is the matter of international relations.4 departments are to develop policies pertaining to the protection they wish to extend to their information. and the public would not be able to comment on this. If this specific clause. then the effects of this Brought to you by The ChirpRoom. for example. This “sensitive information” may thus not be “unlawfully disclosed” to the public.e. they must be accountable to the public for not benefitting the public. The mere fact that the public can choose their leaders is not in itself democracy. Doesn’t this mean that public entities may now all of a sudden choose to not disclose issues that they face. is to apply to such dealings. These departments have 18 months from the date of coming into force to develop and start applying these policies. These national interests include. s11(3)(e) of the Bill. Apparently our dealings with foreign nations will also be “sensitive information. The legislature assigns certain meanings to national interest. nobody would from the initial negotiations be able to criticise the actions of the government and/or officials involved in the transaction. If the public cannot see what their government is doing. if the government at any level or sphere should be able to act behind a curtain for something they call “national interest. no? I stress the fact that democracy should under no circumstances be equated to the existence of universal suffrage. Checks and balances? Transparency? Why is the Bill silent on the issue of having sanction against the Minister for creating categories in terms of the information Bill that would actually undermine its own objectives? Chapter 4 Section 9 states that information that could be deemed valuable in future. I do not know. Whether this was an argument put forward by the MPs who opposed the Bill.” a difficulty arises in how democracy is to be construed.
but also the information of those that they deal with.” ~ David Ben-Gurion Section 17 specifically prohibits any concealment of information solely on the basis that it would embarrass somebody had the information been public or for the purposes of hiding incompetence or malpractice. a dynamic youth politics blog . Section 12 goes further in describing the effect of commercial information. The State in terms of this section may now not only limit the disclosure of their dealings. No person with a legitimate concern can rely on raising a defence of something having been done in the interest of the public. even though its wasteful expenditure could be utilised much better elsewhere? “The test of democracy is freedom of criticism. there is no mention of an institution to regulate the above. the protection of information regarding any and possibly all commercial transactions of the State. Also. in other words: information which may “endanger” national or commercial interests or the interests of a particular individual. human rights on the African continent may be at further risk. However. The first being called “classified”. Would it be possible for the state to refuse to disclose its dealings with companies affiliated to or owned by the political class? Chapter 6 Section 15 clearly outlines 3 information classification levels. R180 million of which goes towards paying their staff and R106 million being paid for some unimportant congress. which has as its premise. Does it now also enjoy such protection. The next level is “Secret”.” Top Secret information includes information that could cause “serious” or “irreparable” damage to national interests. The last one seems rather spy-thriller. even with the necessary security clearance. here I smile. has to remain quiet because there is no public interest clause inserted as a defence. Brought to you by The ChirpRoom. commercial information which could have a disastrous effect on the future existence of the entity. What happens if under the Bill there is a “legitimate concern” that needs to remain hidden and the same document is littered with incompetence and corruption? Then a whistle-blower. “Top Secret. This has caused the Democratic Alliance Youth and the South African Young Communist League to call for the disbandment of the entity. Why do I smile? The National Youth Development Agency has a budget of approximately R400 million. this refers to information that might be “harmful” towards national or commercial interests of the State.5 Bill extend beyond the borders of South Africa.
one would once again see the tendency to work towards achieving greater power within the executive. should the state decide to institute action. Brought to you by The ChirpRoom. Section 22 provides that a maximum of 10 years is given between departments having to review their classifications. whether information that has been classified will remain as such. Democratic Alliance MP Dene Smuts then reminded the President. the Bill provides for the lapsing of the classification. I say this because if an application fails. he needs to show this and may have the period extended. the media will still be able to report on these documents and rely on a defence of public interest. political parties opposed to the Bill. a dynamic youth politics blog . Section 23(2) states that one may request that the classification be reviewed in the pursuit of genuine and legitimate research or in the public interest. Chapter 7 This Chapter provides for the continued classification of state information. In the latter instance. If the Minister of Intelligence wishes to have the period extended for good cause.” These authorities correspond with the classification authorities and I am very concerned that the courts are not mentioned among these. but 10 years is a long time and departments can be expected to set up more onerous policies for review. whereas the other public interest clause called for. If they are. Section 26 of the Bill imposes certain conditions and procedures on “national archives and other archives” but Schedule 5 Part A of the Constitution holds that archives other than national archives are within the specific legislative competence of the provinces.6 Section 19 provides for “declassification authorities. that as long as this remains a constitutional democracy. that is to say. then the legislature seems to be naïve. Where are the courts in all of this? Chapter 8 Herein lies a legal challenge. This would seem in line with Zuma’s view that the opposition should not “co-govern” through the court system. Section 26 is thus an unconstitutional provision. Maximum classification period is set at 20 years. the opposition will exercise its rights in terms thereof. But where is that right now? Further in terms of section 20. the former would inevitably lead to journalists asking permission to publish information beforehand. I don’t have too much to say here. This clause deals with a classification status review. the person applying may appeal to the Minister of Intelligence. This is not the same public interest clause that was a point of contention for many. is to provide for a defence when information has already been disclosed. if not all. See the problem? In reading Sections 24 & 25.
Other offences created. Chapter 12 One should be glad to see that courts aren’t entirely removed from the equation. So any good citizen may still approach the courts for leave to have the relevant information declassified. critique against this chapter would be superfluous. Brought to you by The ChirpRoom. since most of what needs to be said. a dynamic youth politics blog . provision of false information to the intelligence agency. no public interest clause means X needs prior consent and not ex post facto ratification. failure to report having classified information. It would thus enjoy the same position as treason. not much consolation when one considers the following problem. X now needs to approach the court and ask for permission to disclose (remember.) but then it takes 3 months to consider the document and the information is no longer relevant for example. which is equal to a life-sentence. Chapter 10 Chapter 10 establishes the agency which will oversee the outlined protection of information. then I don’t see how they can be effective in reviewing the fairness of the classification of information. But other than this. Also provided for in this chapter. This chapter deals with the release of declassified information to the public.7 Chapter 9 In Chapter 9 one doesn’t find too much to be discontent about. has been said. This is however.” These offences include making available information that could possibly benefit a foreign state. to up to 25 years in the highest degree. disclosure of classified information. There are 3 different degrees that could see a person sitting in jail for time periods of no less than 3 years in the lowest degree. destruction or alteration of important information and improper classification. If the agency is not a Chapter 9 Institution. The harbouring of persons who have trespassed in terms of sections 32 or 33 can see the harbourer get a sentence of no less than 5 years and no more than 10. is a national declassification authority. X finds a particular State document which is classified (even though this is illegal) and wishes to disclose the information in Y Times on Sunday. Chapter 11 Section 32 provides for “espionage offences. include conspiracy.
These pillars include universal suffrage (the right to vote).” These are now the sentiments of the democrats. is to directly remove transparency from the equation. Transparency means that one is at all times able to see what the government is up to. I go back to a point that has already been made. freedom of speech. 62 MPs were not in parliament that day “They may have won the battle. Government by consent is not possible if we only get to choose them and when we do. we’re stuck with them. but they’ll never win the war. it would seem. Democracy is based on different pillars. It is relevant to the issue. What the whole world is striving to achieve.8 Chapter 13 Admin! Admin! Admin! So what does this all mean? To reiterate the seriousness of the matter. of the media and of the constitutionalists in this fine country. since the aim of the Bill. Democracy will save itself. In recent years transparency has also become an extremely important concept. since it has developed as a key concept in corporate governance. human dignity. There are 3 different ways in which the constitutionality of this Bill can be challenged: Brought to you by The ChirpRoom. The media’s freedom of speech has been limited and they no longer act according to the mandate that the Constitutional Court read into section 16 of the Constitution. the ANC is trying to block out. transparency and accountability. 2. a dynamic youth politics blog . they no longer defend democracy as they rightfully should. If the media needs the permission of the ANCgovernment to first of all publish the information then two problems have arisen: 1. The government closes the curtain on what they do. of this I am sure. equality. Conclusion The voting went as follows: 229 MPs voted in favour of slaughtering democracy 107 MPs voted in favour of protecting democracy 2 MPs decided they were indifferent to whether we have democracy or not Furthermore. without being able to scrutinise what they do.
9 1. But we are realists. they may directly apply to the Constitutional Court. a dynamic youth politics blog . they may have the Bill agreed to by a Mediation Committee or it will lapse and then they may simply pass it again. If the National Assembly is then dissatisfied with the amendments. The National Council of Provinces could refer it back to the National Assembly. all of the opposition parties must be present in parliament on the day. Section 79 of the Constitution provides that the last step of the law-making procedure is to receive the president’s assent. the National Council of Provinces will in all probability pass the Bill. We will also more than just likely see President Zuma sign this Bill into effect. with amendments in terms of s76 of the Constitution. the National Assembly would have to pass the Bill with a two-thirds majority. 3. This does however mean. that in order to protect democracy. If the Bill lapses. 2. Phantsi Information Bill! Phantsi! Brought to you by The ChirpRoom. so that the much needed 134 votes against it may prevent its passing. This will mean the death of the Protection of Information Bill. Section 80 of the Constitution provides that if one-third of the National Assembly (134 members) agree to have the Bill constitutionally challenged. He may either refer the Bill back to the National Assembly (if he fears for its constitutionality – which he should) or for the same reasons refer it to the Constitutional Court.
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