State Information Bill Close to Becoming Law Amid Fierce Opposition

South Africa’s controversial Protection of State Information Bill, so-called the Secrecy Bill by its detractors, was finally passed by Parliament yesterday. It now awaits President Jacob Zuma’s signature to become law.

The main objective of the bill, according to State Security Minister Siyabonga Cwele, is to protect state security. He says it is needed to enable government to better regulate the handling of sensitive state information, combat the peddling of such information and counter espionage.

Although the bill is much improved from the original, crudely authoritarian version that gave sweeping powers to all state organs – including water utilities and state-funded bus companies – to classify information, it still has major flaws with serious implications for transparency, the free flow of information and participatory government.

According to The Star, Cwele told Parliament yesterday: “The main objective of the bill remains to protect vulnerable state information against alteration, loss or destruction, which will ensure that our citizens are not denied their rights. For example, (it will ensure) people are not married to people they do not know or their companies are (not) hijacked.”

Cwele’s inclusion of information in the marriage register as well as the Companies and Intellectual Property Commission within the scope of sensitive state information supports the view that the bill still defines state security too broadly.

Also, although the amended bill provides that only the cabinet and the government security cluster can classify information, other organs of state – and junior officials – can still request access to such powers from the minister, opening the door to abuse.

Thankfully, the bill no longer overrules the Promotion of Access to Information Act and provides for the establishment of a classification review panel, rather than giving such enormous powers to the minister of state security alone. However, he still influences who sits on the panel.

Other improvements include that the Human Rights Commission and other statutory bodies with a mandate of promoting the public interest, can now access such classified information – but only after being cleared by the minister.

The South African National Editors’ Forum (Sanef) and the Right2Know Campaign (R2K), which marshalled opposition to the bill, bemoan the absence of a full public interest defence clause  to fully protect investigative journalists and whistle-blowers using classified information to expose corruption, improper government appointments and shady tendering.

They and others have slammed the possible 25 year jail term for such journalists and whistle-blowers as draconian. It’s disconcerting that such people could be prosecuted under a law aimed at spies and foreign enemies of the state when their intentions are to promote clean governance and expose the abuse of power.

Also, the bill criminalises the possession and use of information that is already in the public domain, “effectively criminalising the population at large when classified information becomes public, rather than holding those responsible for keeping secrets accountable,” says R2K.

The bill’s opponents are now hoping to persuade President Zuma not to sign it in its current form but rather have the Constitutional Court review it and pronounce on its constitutionality. The opposition parties and civil society have already declared their intentions to challenge the proposed new law in the highest court in the land in case the president ignores their pleas.

Whatever the outcome, there is no doubt that the protracted and acrimonious battle over this bill will go down in history as one of the most important defining moments of South Africa’s democratic experiment. Hopefully, we can come out of it having further affirmed the supremacy of the rule of law and better being prepared to govern and be governed by the rules we set for ourselves in our much-admired constitution – one in which commitment to human dignity and open government rule supreme.

• Fleishman-Hillard South Africa will continue to monitor developments around the bill and bring you important updates as they occur