South Africans' Parliamentary representatives face a critical decision this week - how much secrecy should be allowed in our democracy?
The Protection of Information Bill has two legitimate objectives. It aims to replace the existing 1982 apartheid-era law, which imposes excessive secrecy, and to establish a statutory framework to protect state information from loss, alteration or destruction, as well as from disclosure to the public in certain circumstances. To this end, it proposes a system for preserving, classifying and declassifying state information to regulate access to all information in the hands of state officials.
The Bill's drafters indicate concern over the problem of information ‘peddling', and therefore create various offences, along with harsh sentences, for the unlawful disclosure of information.
The latest version of the Bill (the 2008 version was withdrawn following strong opposition from civil society and others) will allow all organs of state - approximately 140 bodies, ranging from municipal managers, to parastatals, to the Minister of State Security - to withhold information on highly subjective and potentially unconstitutional grounds.
South Africa's Constitution establishes a robust right of access to information, which is given concrete expression in the Promotion of Access to Information Act of 2000 (PAIA). This framework recognises that the free flow of information undergirds core democratic requirements of openness, government responsiveness and accountability, and informed debate. Consequently, the Protected Disclosures Act of 2000 (PDA) allows otherwise sensitive information to be disclosed to selected persons if it is in the public interest.
This Bill will close down that democratic space.
It acknowledges these democratic principles and requires officials making classification decisions to consider the benefits of openness. Thus, they may classify information only where there is a legitimate need to do so, and it is an offence to classify information for an ulterior purpose.
Disconcertingly, however, the Bill subordinates these principles to national security, which "may not be compromised". More worrying is the Bill's vague and excessively broad definition of the "national interest", which could permit excessive and unjustified secrecy by state bureaucrats.
The definition of "national interest" includes not only the "survival and security of the state", which one might reasonably expect, but also "all matters relating to the achievement of the public good", "all matters relating to the protection and preservation of all things owned or maintained for the public by the state", among others.
Given this all-embracing definition, even the most well-intentioned public servant is likely to feel compelled to be cautious and to over-classify, unnecessarily restricting even legitimate access to information.
The Bill contains harsh punitive measures for disclosing classified information, even criminalising a person who innocently receives such information with no intention of causing harm. The impact on investigative journalism could be severe: we may never again read a newspaper report about an irregular state tender, or about corruption in the public or private sector.
The dangers of this approach are clear. With such vague ‘guidance', hundreds of public servants will exercise their discretion and decide whether or not to classify a document. The potential for a thoroughly confusing proliferation of interpretations will render PAIA almost unworkable for the ordinary citizen. And courageous whistleblowers will almost certainly be silenced.
What remains of these landmark laws will be overwhelmed by the Bill's provision that it must take precedence over any other legislation.
The internationally recognised "Johannesburg Principles on National Security, Freedom of Expression and Access to Information", provide that classifying documents is an exceptional measure and may be done only for reasons that are clear, reasonable, legitimate, proportionate and justifiable in an open democracy. These standards have been endorsed by the Constitutional Court in its unanimous decision in Dawood v Minister of Home Affairs.
It is therefore essential that parliamentarians achieve an appropriate balance that recognises the complex nature of the national interest, instead of reducing it to the equivalent of national security. The Bill must be fundamentally redrafted so as to provide clear, specific and fair guidance if it is to pass constitutional muster.
The Bill should reflect PAIA (and comparative legislation world-wide) and include an explicit "public interest defence" for our democracy to secure the very real benefits of a free press and an active citizenry. Where disclosure of information would reveal a failure to comply with the law, or the risk of imminent and serious risk to public safety or environmental harm, the Bill should echo the PDA and actively encourage disclosure.
The Bill should also establish an independent appeal mechanism to adjudicate disputes over information classification, instead of giving the Minister of State Security the power to decide all disputes. By failing to recognise the clear conflict of interest presented by this ‘remedy', it compounds the already costly and time-consuming remedy of seeking redress through the courts.
The complexity and sensitivities characterising matters of this nature, and their far-reaching consequences, necessitate the establishment of an impartial body - such as an Information Commissioner - to arbitrate disputes effectively, expeditiously and cheaply. Such a body is long overdue. It was recommended by the 2007 parliamentary review of Chapter Nine institutions, headed by Kader Asmal, to make the right to information more accessible to ordinary South Africans.
Parliamentarians should craft a classification regime that protects and promotes transparency and accountability - non-negotiables in our constitutional democracy. The Bill should not weaken the existing transparency framework which seeks to protect the public's right to know about the governance of public affairs that directly affects people's lives and wellbeing.
Written by: Shameela Seedat and Gary Pienaar, senior researchers with Idasa's Political Information and Monitoring Service (PIMS)