The South African ‘Secrecy Bill’: where are we now – Caroline Stone

24 June 2012 by

When two Nobel Laureatesan eminent constitutional lawyer and the Secretary General of COSATU (South Africa’s largest trade union federation) are unified in their stinging criticism of a proposed Bill, it may be the time has come for a redraft. Following 293 condemnatory submissions to the National Council of Provinces’ Ad Hoc Committee, the ANC has begun to make concessions.

In an unexpected volte-face at Committee deliberations last month, the ANC tabled a raft of amendments to the current draft of the controversial Protection of State Information Bill. Key proposals include the insertion of a narrow ‘public interest defence’ in relation to a Clause 43 charge of unlawful disclosure of classified information and scrapping of the intolerably low mental element of constructive knowledge – “ought reasonably to know” – from many of the offence-creating provisions. By virtue of the former amendment, an accused would also be able to rely on a defence of ‘wrongful classification’.

Although these proposals are cause for cautious optimism, this latest draft of the Bill arguably remains an unconstitutional erosion of the right to freedom of expression and access to state information enshrined in sections 16 and 32 of the South African Constitution respectively.

Public Interest Defence not fit for purpose

According to the ANC’s proposed amendment, individuals who disclose classified information which “reveals criminal activity, including criminal activity for ulterior purposes listed in sections 14 and 47 of this Act [improper classification] will not be guilty of an offence under Clause 43.

The most obvious flaw with this proposed defence is that it sets an unnecessarily high threshold for lawful disclosure, namely, criminality. One can envisage numerous scenarios, ranging from actions which pose a risk to human life to shady tendering practices, where open and transparent government is served by the disclosure of sensitive information, despite such conduct falling short of a criminal offence.

Another problem is the mismatch between the breadth of the proposed defence and the criteria for mandatory declassification under Clause 19 – which includes information that discloses “an imminent and serious public safety or environmental risk”. The net result of this inconsistency is that an individual may be deprived of his or her liberty for disclosing information which a minister was in fact duty bound to declassify under Clause 19. Perhaps not the hallmark of a reasonable and justifiable limitation on the right to freedom of expression, as demanded by section 36 of the Constitution.

Finally, the failure to extend any public interest defence to security sector employees charged with unlawful disclose of a ‘state security matter’ under Clause 49 of the Bill constitutes another significant shortcoming of the recent proposals. Contrary to Government assertions that “no country has included such a reckless practice” (referring to the inclusion of a public interest defence per se), Canada has specifically legislated for such a defence: see section 15 of their Security of Information Act 1985. Even in England – where the Official Secrets Act 1989 does not provide an express public interest defence – the House of Lords has stressed that any judicial review of an employer’s refusal to authorise disclosure of classified information requires a court or tribunal to carefully consider whether the public interest favours disclosure. Further, the availability of extensive ‘internal’ reporting mechanisms – lacking in the Secrecy Bill – ensures the Act strikes the correct balance between freedom of speech and national security (R v Shayler [2002] UKHL 11, paras 27-36 and 79).

Constitutional Clashes

The Promotion of Access to Information Act 2000 [‘PAIA’] is South Africa’s ‘constitutionally-mandated’ statute which codifies the right to access state information provided for in section 32 of the Constitution. Section 5 of PAIA is clear that the Act reigns supreme over other statutes which are materially inconsistent with PAIA or otherwise purport to restrict access to state information.

However, in spite of the ANC acknowledging the need to at least balance these two pieces of legislation, it seems the Bill is still on a constitutional collision course with PAIA. As a result of an eleventh hour amendment before the Bill was passed by the National Assembly, Clause 1(4) ensures the Bill now trumps PAIA in the event of a conflict regarding the disclosure of classified information.

In order to appreciate quite the magnitude of this erosion of the right to access state information, consider the fact that the drafters of PAIA chose not to include the State Security Agency as one of the exempted organisations under section 12 of the Act. Moreover, ‘defence, security and international relations’ are only discretionary, not mandatory grounds justifying refusal (PAIA, section 41, compare section 38).

Quite apart from the potential unconstitutionality of Clause 1(4) itself, what are the practical consequences of this legislative clash? Well, if ‘borderline’ disclosable material reveals politically sensitive information which a minister would prefer did not come to light before the next election, Clause 34(2) of the Bill now provides a ‘get out of jail’ card: an unscrupulous minister can refuse – or at least stall – access to the information merely on the grounds that it is ‘classified’. Put another way, the starting point will become non-disclosure, not transparency.

Another crucial question: should the minister give reasons for his refusal? The Bill is silent on the matter – in theory therefore, absent a conflict between PAIA and the Bill, section 25(3) of PAIA (requiring reasons to be given) continues to bite. However, the fact that the ANC recently rejected the inclusion of a specific clause to this effect in the Bill bodes ill in this regard.

Looking to the future

The Ad Hoc Committee is due to conclude its review of the Bill at the end of June, following which any amendments will be sent back to the National Assembly for approval. Unless significant further changes are made, it seems likely that one way or another, the Bill is heading for review by the Constitutional Court. Assuming President Zuma does not succeed in his current threat to severely curtail the Court’s powers, there is also every possibility the Court will determine that the Bill does not meet the lofty expectations of transparent governance embodied in the Constitution.

A longer version of this article can be found on Constitutionally Speaking.

Caroline Stone is a barrister at 3 Paper Buildings, Temple, specialising in public and employment law.

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