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The Protection of Information Bill currently being considered by Parliament aims to protect sensitive state information by providing for a system of classification and declassification. It is an extremely important piece of legislation, as the existing legislative framework which governs the protection of sensitive information emanates from the apartheid era where secrecy was the norm and parliamentary sovereignty trumped constitutional supremacy. It is thus essential that the final version approved by the Ad Hoc Committee is constitutionally compliant. If not, the Bill will certainly be challenged in the Constitutional Court since in its present form, it carries the danger of making serious inroads on an open, accountable and democratic order.

Although the Committee has made many concessions regarding the Bill during its deliberations, consensus has not been reached on critical areas which, if left unchanged, will render the Bill unconstitutional. These include the draconian penalties for disclosing classified information, the absence of a public interest defence, the appointment of an independent review body, the reviewing powers of the Courts and the application of the Bill to all organs of state. Much of the continuing public debate and criticism has focussed on the first three issues and the over-broad reach of the Bill has been largely overlooked. 

At the heart of the debate are the competing interests of promoting access to information, whilst simultaneously barring access to sensitive information. The central question which thus arises is to what extent will a limitation on the right to access of information pass constitutional muster?

The preamble of our Constitution lays the basis for an open and democratic society in which the government is based on the will of the people. It therefore asserts the right of all citizens to access to information about the activities of the government so that they may both participate in governance and hold the government of the day accountable. In short, the will of the people can not be heard or known if the people are smothered in ignorance about the affairs of government. Most important, section one of the Constitution prescribes open and accountable governance as a foundational value. In addition, the Bill of Rights expressly guarantees the right of citizens to access to information. Transparency is thus the cornerstone of our new democratic order. What is more, it is also the leitmotif of the Bill of Rights since an individual cannot exercise a right in the Bill of rights unless there is transparent governance. Thus for example, the right to claim basic education is premised upon access to educational policies and practices; the right to make political choices presupposes access to governmental policy, government tenders and service delivery contracts. In addition, transparency is also expressly and implicitly repeated throughout the entire Constitution. It is expressly provided for in the provisions governing co-operative governance and intergovernmental relations. It is also asserted in the provisions governing the conduct of Parliament, the National Assembly, the National Council of Provinces, Provinces and the Public Administration. The question of transparency is thus not simply a feel good provision; it is a founding value that permeates our total constitutional order and, indeed, distinguishes democratic government from autocracy. Openness and transparency is a safeguard against totalitarianism.

Admittedly, unbridled access to information could encroach upon other rights guaranteed in the Bill of Rights, especially the rights to dignity and privacy. However, the Promotion of Information Act already prohibits such an encroachment.

The Constitution expressly allows for permissible limitations into otherwise guaranteed rights. It requires that the limitations be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Implicit in the notion of reasonableness and justifiability is the requirement of proportionality. To this end, when determining the reasonableness and justifiability, a court is enjoined to consider all relevant factors, including the nature of the right being limited, the importance of the purpose of the limitation, the nature and the extent of the limitation, the relation between the limitation and its purpose, and lastly, whether there are less restrictive means to achieve the purpose. In other words, every restrictive provision must be rationally related and proportionate to the constitutionally permissible objective it seeks to achieve. What this means in the present context, is that any inroads into the overarching requirement of transparency must be necessary and justifiable in an open democracy.

 A critical aspect of the Bill is thus the reach of the limitation. Although there are two working versions of the Bill currently before the Committee, the application of the Bill is the same in both versions. In essence, it applies to all organs of state and bodies authorised to exercise intelligence oversight.

An organ of state is defined in the Constitution to include any department of state or administration in the national, provincial or local sphere of government and any other functionary or institution exercising a function in terms of the Constitution or a public function. It thus includes such diverse bodies as Municipal Tourism Offices, Universities, Chapter Nine Institutions, the Truth and Reconciliation Commission, public amenities such as the Johannesburg Zoo and theatres, professional bodies such as the Law Society and the Estate Agency Affairs Board and even Wetlands. Although the Institute for Democracy in Africa (IDASA) has identified that there are currently over 1001 organs of state, which include the estimated 600 to 700 state owned entities, the list is not absolutely clear, as evidenced by the State Law Adviser’s inability to furnish an exhaustive list to the Committee. 

The question which consequently arises is whether such broad application is justifiable and reasonable? Clearly, in order to meet this threshold, the policy informing the extent of the Bill’s application must be founded on sound constitutional principles. The first such principle is the promotion of accountability and openness, which requires enabling access to information wherever possible and restricting classification to that which is strictly necessary for the protection of state security. 

The second guiding principle is the promotion of constitutional legality. This principle of legality mandates legislation to be clear and unambiguous. It requires a clear understanding of what must be classified and specifically by which organ of state. The third principle is the promotion of good governance and just administrative action. The latter requires that the exercise of discretionary powers is clearly defined and circumscribed.

 To conclude: In its present form any organ will have the power to restrict access to information. In so doing, the Bill facilitates a culture of opacity and its corollary, the abuse of power. It therefore has the effect of undermining the Constitution’s founding values of accountability and transparency. The over-broad reach as found in the Bill is neither reasonable nor justifiable, since it is not compatible with the requirement of an open and democratic society.

For the Bill to pass constitutional muster, its application will have to be severely narrowed so as to ensure only absolutely necessary inroads into the free-flow of information. This requires containing its application to security departments the duty of which it is to safeguard information that has a potential to impact on matters of intelligence and security. Other organs of state will still be able to withhold information they deem sensitive on the many grounds sanctioned in the Promotion of Access to Information Act. These include information which could cause prejudice to the defence of the Republic, the security of the Republic and international relations of the Republic or would endanger the safety of a person or building.

Protection of information which is constitutionally sound imposes a heavy responsibility on the Committee and it is hoped that this responsibility will not be shirked.