Secrecy Bill passed regardless of outstanding issues

At approximately 5pm on 12 November the Protection of State Information Bill (or Secrecy Bill) was passed by parliament for the third time.

Members of The Right2Know (R2K) campaign have expressed their disappointment and labelled President Jacob Zuma referring the Bill back to parliament on the previous occasion as ‘delaying tactics’.

In a strongly worded statement R2K stated that they have lost faith in parliament and are left with no other alternative but to fight the matter in the Constitutional Court.

According to R2K outstanding and unaddressed issues are:

• To ensure a full Public Interest Defence. The current Secrecy Bill only has narrow protection for whistle-blowers and public advocates that excludes a range of matters in the public interest, such as shady tendering practices or improper appointments within key state agencies

• To ensure full whistle-blower protection. Under the current Secrecy Bill a whistle-blower, journalist or activist who discloses a classified record with the purpose of revealing corruption or other criminal activity may be prosecuted under the “espionage” and other offences not covered by the proposed Public Interest Defence

• Not to criminalise the public as spies. In terms of the current Secrecy Bill people can be charged with “espionage”, “receiving state information unlawfully” (to benefit a foreign state), and “hostile activity” without proof that the accused intended to benefit a foreign state or hostile group or prejudice the national security; only that the accused knew or “ought reasonably to have known” that this would be a “direct or indirect” result

• To limit the Bill to the security agencies. The current Secrecy Bill still gives power to the Minister of State Security to transfer classification powers to other state bodies (and junior officials) without adequate public consultation

• To include a Public Domain Defence. The current Secrecy Bill effectively criminalises the population at large. When classified information becomes public it is no longer a secret. Rather than holding those responsible for keeping secrets accountable, the current Bill punishes anyone who accesses information once it has been leaked into the public domain

• To reduce draconian sentences. The current Secrecy Bill still contains draconian sentences of up to 25 years in jail. These are out of line with international practice and will have a chilling effect on anyone in possession of information in the public interest

• Not to undermine the Promotion of Access to Information Act (PAIA). The procedure in the current Bill permitting applications for the declassification of classified information is in conflict with the PAIA – despite commitments from Parliament to the contrary

• To introduce an independent review panel. The body established to review classification (a Classification Review Panel) is not independent enough and the simple possession of classified information appears to be illegal, even pending a request for declassification and access

• To disclose apartheid records. Information that has been made secret in terms of old and potentially unconstitutional laws and policies will remain classified under the current Secrecy Bill pending a review for which no time limit is set. This includes information classified under the apartheid-era Protection of Information Act of 1982 and the government policy adopted in 1996, the Minimum Information Security Standards