The Right2Know campaign condemns the legal action taken by Presidential spokesperson Mac Maharaj against Sam Sole and Stefaans Brummer of amaBhungane, in terms of draconian provisions of the National Prosecuting Act that threaten whistleblowers with up to 15 years in prison.

While it is entirely justified that witnesses be protected in criminal investigations, the Act goes to extraordinary lengths to shut off the work of the National Prosecuting Authority from public scrutiny. Essentially any document in their possession is secret, and anyone who discloses that information faces up to 15 years in prison: it need not be formally classified as a secret, it need not relate to national security or the personal safety of a witness to the state -- and most importantly, there is no whistleblower protection or public interest defense written into the law.

Effectively, this is even worse than the Secrecy Bill, which at least requires officials to formally classify a document before it becomes a state secret, and provides some degree of whistleblower protection, as paper-thin as it may be. We view these provisions as a symbol of an existing climate of secrecy in South Africa.

It is in any case not clear how amaBhungane has contravened the Act, since they did not disclose the information in question.

However, the actions taken against amaBhungane in the past few days also show us how readily politicians will use the full might of draconian laws to protect themselves from scrutiny. This is exactly why South Africa needs to guard against the provisions that the Secrecy Bill seeks to dole out: the powerful already harbour too many secrets!

Note to editors: amaBhungane (the M&G Centre for Investigative Journalism) is one of over 400 civil society organizations within the Right2Know campaign - a civil society coalition committed to defend and advance the right to know in South Africa, through advocacy on draconian provisions of the Protection of State Information Bill, access to information for community struggles, and campaigning for media freedom and diversity. For more information see www.r2k.org.za.

From the National Prosecuting Act:

41 Offences and penalties

(6) Notwithstanding any other law, no person shall without the permission of the National Director or a person authorised in writing by the National Director disclose to any other person-

(a) any information which came to his or her knowledge in the performance of his or her functions in terms of this Act or any other law;

(b)  the contents of any book or document or any other item in the possession of the prosecuting authority; or

(c)  the record of any evidence given at an investigation as contemplated in section 28 (1), except-

(i)  for the purpose of performing his or her functions in terms of this Act or any other law; or

(ii)  when required to do so by order of a court of law.

(7) Any person who contravenes subsection (6) shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 15 years or to both such fine and such imprisonment. 

Statement issued by Murray Hunter, Right2Know, National coordinator, November 20 2011

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