The ANC has finally set its face against a public interest defence for the disclosure of classified information under the Protection of Information Bill, making a Constitutional Court battle almost inevitable.
The move comes 18 months since the legislative process began, after many final deadlines and postponements and much cutting and pasting, justifying former intelligence minister Ronnie Kasrils’s description of the Bill as “a dog’s breakfast of toxic gruel”.
An amendment allowing for a public-interest defence was civil society’s most pressing demand.
Without it, a would-be whistle-blower who discloses a classified document that is deemed “directly or indirectly to … prejudice the national security of the republic” — even if it exposes corruption — risks a 15-year jail sentence. Mere disclosure attracts a jail sentence of up to five years.
The clause will have a particularly deadening effect on the work of investigative journalists, anti-corruption campaigners, shop stewards and others.
In fairness to the ANC, it has never suggested that a concession on this aspect of the law is possible. Indeed, its attitude has hardened. In the past it had said that the media and whistle-blowers could use the Promotion of Access to Information Act (Paia) to access information, offsetting the provisions of the “Secrecy Bill”.
Pow! to Paia
However, this week it proposed a new clause stipulating that where the Bill and Paia conflict the former will prevail.
Opponents of the Bill, including the Right2Know Campaign, have managed to wring concessions from the ruling party, but most of these are, at best, partial.
R2K pointed out this week that:
- Although the power to classify and declassify information has been limited to the security services, police, defence and intelligence, through the backdoor the minister can still grant this power to more than a thousand state organs that have “good cause”.
- While the definition of national security as the justification for classifying information has been tightened, the revised definition encompasses the profoundly open-ended “exposure of economic, scientific or technological secrets vital to the republic”.
- Although commercial information is no longer overtly protected, the clause relating to economic, scientific or technological secrets potentially undermines this.
- Although the Bill now provides for a panel to review the status of classified documents, there is still no oversight of decisions to classify them.
R2K pointed out that the Bill “contains the narrowest possible protection for whistle-blowers employed by the state and none whatsoever for ordinary citizens and journalists who expose a state secret that reveals wrongdoing or corruption in the state”.
25 years in the slammer
“Though the minimum mandatory prison sentences for these offences have been removed, the maximum prison sentences are extraordinarily high — up to 25 years (where the disclosure would benefit a foreign state). Effectively, this Bill threatens to charge whistle-blowers on state security matters as foreign spies.”
If passed, the Secrecy Act will draw a veil over the exercise of state power. It will help to mask the corrupt activities of those in government and facilitate cover-ups, tender irregularities and official fraud.
Glenda Daniels is on the Right2Know national working group.