Proposed South African secrecy law may end up in the Constitutional Court
16 September 2011
The South African ANC led government is proposing to introduce a Protection of Information Bill, a highly controversial piece of proposed legislation which aims to regulate the classification, protection and dissemination of state information, weighing state interests up against transparency and freedom of expression.
Critics have attacked the Bill because it defines the concept of “national interest” very broadly, granting wide powers to classify documents as secret in the name of national interest. And the absence of a public-interest defence is seen as problematic because it would have functioned as an important means for information of serious concern to citizens to be disclosed, regardless of the fact that the information was classified. The penalties for disclosure of protected information are harsh. Anyone who unlawfully discloses classified information could be guilty of an offence and liable on conviction to imprisonment for a maximum of five years. There is limited protection under the Protected Disclosures Act 2000, but this statute only protects employees from being subjected to occupational censure for having made a protected disclosure. Journalists and other members of the public are not covered by this Act and therefore cannot claim its protection.
On 31 August the ANC told Parliament’s special committee processing the bill that it would not allow a public-interest defence to be written into the bill as this would place journalists in a class of their own. Campaigners maintain that the Bill will be detrimental to transparent governance in South Africa, and according to South African media lawyer Dario Milo, the exclusion of the public-interest defence “will certainly form an important part” of any constitutional challenge to the bill if it is passed in its current form. The proposed act may be found to be in breach of the right to freedom of expression under Section 16 of the Bill of Rights.
- South African Courts deal censorship two solid blows – Dario Milo
- Freedom of Expression Institute Media Statement
- Kentridge warns on info bill
- Media freedom under review