On 6 August 2016, the legal research group of the ruling party, the African National Congress, held a workshop on the Protection of State Information Bill (also known in many quarters as the “Secrecy Bill”). I was asked to speak at the workshop. I am optimistic that the criticisms of the Bill will be brought to the attention of the President (as promised by Minister Jeff Radebe). The outcome of the last workshop on free speech issues which I spoke at last year was the ANC’s support for the repeal of criminal defamation – see my blog here: http://blogs.webberwentzel.com/2015/10/the-timely-demise-of-criminal-defamation-law/. So there may be some cause to be optimistic. In any event, this was my speech:
Thank you Programme Director. Honourable Minister [Jeff Radebe], colleagues from the media and civil society, it is a great honour to be invited to present at this workshop on the Protection of State Information Bill.
I want to do three things in my address to you today.
First, I want to briefly sketch how we got to where we are with the Protection of State Information Bill, and describe what the Bill is broadly about.
Secondly, I emphasise that the heart of the debate here today is what the balance should be that our democracy must strike between protecting national security, on the one hand, and at the same time maximising openness and transparency, and promoting freedom of expression and freedom of information.
Thirdly and finally, I will discuss two topics which are missing in the Bill and which, in my view, render the Bill vulnerable to constitutional challenge.
First: where are we with the Bill?
The Protection of State Information Bill began its life in 2008 under then intelligence minister Ronnie Kasrils. When one compares the first version of the Bill and its current version, adopted in 2013 by Parliament, what is striking is how much the Bill has changed, mostly for the better. In the intervening years, there is no doubt that the Bill has benefited greatly from public submissions and hearings and that many of the criticisms of the original Bill have been taken on board by the drafters.
I mentioned that the Bill was adopted by Parliament in 2013; it was then sent to the president for signature. The president referred the Bill back to parliament in September 2013 and a number of typographical and other minor errors were corrected. It has been with the president awaiting signature ever since, for almost 3 years. Last year in October, on media freedom day, the president indicated to the media that the Bill was still under consideration and that various inputs and legal opinions were being processed, as he had since received objections of a constitutional nature. So the president is not rushing the Bill, it seems, and I think that is not a bad thing.
What does the Bill do?
The Bill will repeal the apartheid legislation, the Protection of Information Act, 1982, which is currently in force. It provides for a system of classification of sensitive state information and creates a number of criminal offences for disclosing and possessing classified information. So for example, information will be classified as secret if the disclosure of the information is likely to cause serious and demonstrable harm to national security.
For the media, one of the biggest concerns in the Bill is clause 41, the prohibition against possessing or disclosing classified information, on pain of a maximum 5 year prison sentence. Now there are a number of defences that have now been built into this provision – in particular, where the disclosure would reveal criminal activity, as well as protected disclosures. But in my view, these defences do not go far enough, as I’ll explain later.
So next to the heart of the issue: the balancing exercise.
Democracies need laws that protect national security. Thus the Constitutional Court in the Independent Newspapers v Minister for Intelligence case in 2008 reminded us that our own Constitution “imposes upon the government the duties to preserve the peace and secure the well-being of the people of the Republic; to maintain national security; to defend and protect the Republic; to establish and maintain intelligence services; and to prevent, combat and investigate crime”.
At the same time, at the very bedrock of any participatory democracy are the values of openness and transparency, and the rights of freedom of expression and freedom of information. Again I turn to the Constitutional Court for guidance: “It is impossible to hold accountable a government that operates in secrecy”, the Court said in the Mail & Guardian Khampepe report case.
Laws such as the Protection of State Information Bill – that allow the state to classify information so that it becomes secret and is in general kept out of the public glare – necessarily limit the values of openness and transparency and restrict the free flow of information.
Yet we know that no right is absolute and the battle ground with the Bill will be whether the restrictions on the rights are reasonable and justifiable in our democracy, an onus the government must discharge. This is the constitutional balancing act to which I referred earlier.
How are we to resolve where the proper constitutional balance lies?
A good start – where the Bill does very well – is in articulating the general principles of state information in clause 4. So eg that clause says that state information that is accessible to all is the basis of a transparent, open and democratic society, and that measures taken in the Bill must have regard to freedom of expression and access to information. The Bill is also much improved in having a Classification Review Panel (which is not perfect but a welcome addition) to review classifications and declassifications, and there is a system by which one can request access to classified information, much like in terms of the Promotion of Access to Information Act.
But the two areas I want to deal with in my final topic are those that in my view are desperately needed for the Bill to have a chance of passing constitutional muster: there must be a public interest defence, and there must be a public domain defence.
Public interest defence
Without a public interest defence, a journalist who is leaked classified information which reveals information of massive public interest will only be able to publish, under the current Bill, if the documents reveal criminal activity. This will often be a difficult call to make, and is too narrow to provide adequate breathing space to the media.
Instead, a public interest defence needs to be legislated. The concept of public interest is familiar in our media law and a journalist who acts in the public interest ought not to be sent to jail for 5 years for revealing the information. A recent very significant example is the reportage of the Nkandla scandal – much of the documentation involved there was classified by the Department of Public Works. Another example is the Browse Mole report which was a secret document of the Scorpions leaked to Cosatu and the media. And the onus will be on the journalist or the whistle blower to ensure that he gets it right from a public interest perspective – otherwise he or she faces the severe consequences in the Bill.
Public domain defence
The other area that in my view needs attention is a public domain defence. This would protect a journalist or citizen who merely repeated information that is classified where that information is already in the public domain.
Last year in the dispute between Business Day and South African Airways over a legally privileged document, the Court recognised the public domain doctrine and in particular cited the famous Spycatcher case with approval, where the British court held: “If the courts were to make orders manifestly incapable of achieving their avowed purpose, such as to prevent the dissemination of information which is already disseminated, the law would to my mind indeed be an ass”. Similarly once classified information has been published for all the world to see it makes no sense to refuse a South African member of the media the right to publish the same information that everyone around the world is seeing. One thinks of the Al Jazeera spy cables involving the SA State Security Agency put online last year eg. Any SA media or indeed any person who repeats what is on Al Jazeera’s website would find themselves in hot water if the Bill was in force, as they would be disclosing classified information.
I end on an optimistic note. The journey of the Bill from the 2008 Kasrils Bill to the 2013 draft which sits with the president is a great testament to our participatory democracy. The Bill is a far better product than before. But we can do better.
We have an opportunity to become world leaders on the balance between national security and free speech in an environment where countries such as the US and England are using national security to trump all civil liberties. Let’s use the opportunity of the Protection of State Information Bill to become the model which countries around the continent and indeed the world, seek to emulate. Let us become the best international practice.