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The Right2Know campaign welcomes comments by Deputy President Motlanthe[1] that suggest the ruling party may consider amendments to the Protection of State Information Bill (the Secrecy Bill) – particularly with regard to the inclusion of a ‘public interest defence’ that would protect those who expose a state secret in the interests of social justice.

We view this as an encouraging sign that dialogue is still possible to ensure that the constitutional imperative of access to information is not undermined.

A number of spokespeople from the ANC and Ministry of State Security have claimed that the Bill already includes whistleblower protection because it is aligned with the Protected Disclosures Act (PDA), but the Right2Know campaign has repeatedly pointed out that the PDA does not provide adequate protection. The PDA would only protect state employees who blow the whistle, and does not extend to ordinary citizens. On top of that, only the lowest-level offences contained in the Secrecy Bill offer protection under the PDA; the most severe penalties in the Secrecy Bill, which carry prison sentences of up to 25 years for exposing state secrets, give no protection whatsoever to whistleblowers.

However, it must not be forgotten that the Bill has structural problems that go far beyond the lack of a public interest defence.

It is crucial that we have further dialogue over the potential for the current draft of the Secrecy Bill to create an overall chilling effect for access to information and freedom of expression. In its current form the Secrecy Bill would trump the Promotion of Access to Information Act (PAIA)[2], meaning that wherever the two laws conflict, secrecy will prevail over openness. At a time when the promises of PAIA are already going unfulfilled, and communities are already struggling for access to information, this is unacceptable.

The Right2Know campaign has raised further, concerns over the harshness and broadness of the penalties, over clauses that give extra protection from public scrutiny to the state security apparatus, and over remaining loopholes in the drafting that is intended to limit who may make secrets and what may be made secret.

As the ANC has committed itself to thorough public consultation on the Protection of Information Bill, and in light of encouraging comments by Deputy President Kgalema Motlanthe, these are the critical issues in the Secrecy Bill that must be discussed if South Africans’ right to know is to prevail.