10 problems with state secrecy bill - GCB

R A K Vahed SC explains why the bar council believes proposed law to be unconstitutional

The Protection of Information Bill ("the Bill") was introduced in the National Assembly by the Ministry of State Security and published for comment earlier this year.  As is customary, the Bill was provided to the General Council of the Bar ("GCB") for its comment.  The GCB recently submitted its report on the Bill to the relevant Parliamentary Committee, being in this case the Joint Standing Committee on State Security.

As has been widely reported, the Bill purports to provide for the protection of certain information from disclosure, destruction and loss, and to regulate the manner in which information may be protected. In its report, the GCB has raised several concerns about the content of the Bill.  In brief, those concerns are the following:

(a) Information which genuinely requires protection from disclosure, and which in terms of the Constitution of the Republic of South Africa Act, No. 108 of 1996 ("the Constitution") may legitimately be withheld from a person desiring access to that information, is already capable of being kept out of the public eye in terms of existing legislation, namely, the Promotion of Access to Information Act, No. 2 of 2000 ("PAIA").

(b) Section 32 of the Bill of Rights enshrined in the Constitution provides that "Everyone has the right of access to any information held by the State", and provides further that national legislation must be enacted to give effect to this right. This provision of the Constitution is subject, of course, to section 36, which provides that all rights in the Bill of Rights (which includes the right of access to information in terms of section 32), may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, but that no law may otherwise limit any right entrenched in the Bill of Rights.

The preamble to PAIA makes clear that the Act was promulgated in order to give effect to section 32 of the Constitution, but with due regard to the limitation provision in section 36, and contains provisions detailing the grounds on which access to information may be refused.

These grounds include circumstances where disclosure of information may reasonably be expected to cause prejudice to the defence or security of the Republic; or certain information which might harm the international relations of the Republic or the economic interests and financial welfare of the Republic and public bodies in circumscribed circumstances. 

It is therefore difficult to discern why further protection of that sort of information is required, or what legitimate State purpose is served by the additional classifications of information envisaged by the Bill.

(c) To the extent that the Bill envisages the withholding of information which would require disclosure under PAIA, the GCB considers that it is contrary to the Constitution and an unjustifiable limitation of section 32 of the Constitution.

(d) There are provisions in the Bill which also involve an unconstitutional infringement of section 16(1)(b) of the Constitution, which provides that "Everyone has the right to freedom of expression, which includes freedom to receive or impart information or ideas which includes (a) freedom of the press and other media; [and] (b) freedom to receive or impart information...".

(e) The Bill contains draconian custodial sentences (without the option of a fine), which can be imposed on persons who disclose or possess classified information.  These penalties are considered to be markedly out of proportion to any purported benefit derived from the shielding of classified information.

(f) The Bill provides for the classification of information to be effected by the head of an organ of State or a delegated official, into information which is regarded by the individual so classifying as "confidential", "secret", or "top secret". By means of such classification, government departments and Governmental officials would in terms of the Bill be entitled to preclude members of the public from being able to gain any documentation unless the information were first declassified, and could through this classification process effectively shield themselves from scrutiny. 

While clause 17 of the Bill provides guidelines for purposes of the classification of information, if passed into law the Bill will inevitably make it considerably more difficult for the media, independent watchdogs and any other interested persons to obtain information about irregular or dishonest conduct by State officials, or to expose wasteful expenditure and maladministration.

The classification system, coupled with the draconian punishments for non-adherence to the provisions of the Bill, make it far less likely that any concerned Government employee who is or becomes aware of corruption or ineptitude will bring this to the attention of any outside party.

(g) The "commercial information" in the possession of an organ of State which in terms of the Bill can be classified "confidential", "secret", or "top secret" is extremely wide-ranging and would too readily render immune from disclosure information concerning tender irregularities, improper financial relationships by and with State officials, and the like.  The restriction of information of this kind is already adequately and reasonably protected by PAIA.

(h) The vagueness of the concept of "national interest" defined in section 11 of the Bill also makes it easy for Government officials reluctant to expose themselves to scrutiny to preclude the public from examining their actions and decisions.

(i) The classification system of information envisaged in the Bill may also prejudice litigants in Court, and would certainly make it considerably more cumbersome and protracted to tackle an organ of State on improper or corrupt practices.

(j) In short, while the Bill contains certain useful provisions, it also contains a number of provisions which are plainly inconsistent with, and indeed contrary to, the foundational values of the Constitution, including those of openness and transparency in Government and the accountability of Government to the electorate.  Section 1(d) of the Constitution provides that the Republic is a democratic state founded on the value of, inter alia, accountability, responsiveness and openness.

The Constitutional Court has recently, with reference to that provision, in the decision of Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re Masetlha v President of the Republic of South Africa & Another remarked that "[the] systemic requirements of openness in our society flows from the very founding values of our Constitution, which enjoin our society to establish democratic government under the sway of constitutional supremacy and the rule of law in order, amongst other things, to ensure transparency, accountability and responsiveness in the way Courts and all organs of State function". 

The GCB is of the view that several of the provisions of the Bill are inimical to these foundational values of our Constitution.

R A K Vahed SC


Statement issued by the General Council of the Bar of South Africa, August 20 2010

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