The key objections to the Secrecy Bill

CAPE TOWN – Years of work, over 100 meetings, 800 amendments and vociferous protests…the Protection of State Information Bill (POSIB) has been on a rollercoaster ride indeed.

But while the bill was passed by the National Assembly on Thursday, there’s a long haul ahead. Opposition political parties and activists look set to head to the Constitutional Court (ConCourt) if President Jacob Zuma chooses not to refer it back to the National Assembly.

Over the past year, the so-called ‘Secrecy Bill’ – which was labelled draconian and a dangerous cover-up – has been significantly re-drafted. But a range of players believe there are still serious flaws.

Chairman of Pick ‘n Pay, Gareth Ackerman, told Moneyweb he is still concerned about the legislation.

“The bill is an improvement on the initial draft, but it is my view that it will not pass constitutional muster.”

Ackerman spoke out strongly against the legislation in 2010, when he said that the bill in its form at the time, had the potential to scare off foreign investors and blunt the rights of consumers. He was something of a lone voice in the business community.

This week, he acknowledged that the redrafted bill was a big improvement, but that it still raised concerns about limiting the free flow of information.

“We must take great care to protect freedom of the press, particularly given how hard we fought to secure it,” he said.

So what are the key objections to the legislation?

Provincial archives

The 1996 Constitution made provincial archives, which includes provincial record-keeping, as an exclusive provincial competence. However, in terms of the bill, provincial archives are still subject to the POSIB. The DA’s Dene Smuts says the Western Cape has passed its own Provincial Archives and Record Services Act to govern public records.

“The State Security Ministry and the intelligence services have no business with those records. It is our contention that Parliament should not be legislating at all where exclusive provincial competencies prevail.”

This concern is shared by the African Christian Democratic Party amongst others.

The DA and other opposition parties believes the legislation should been tagged as what’s known as a Section 76 bill, which would allow for proper provincial scrutiny.

Narrow protection for whistleblowers

The Right2Know Campaign, says its biggest concern it that it believes the bill only has narrow protection for whistleblowers and public advocates, as the legislation does not include a full Public Interest Defence.

“This excludes a range of matters in the public interest like shady tendering practices or improper appointments within key state agencies. This half-measure fails to acknowledge the urgent need to address South Africa’s whistleblower crisis,” said Right2 Know.

“While the Bill limits the number of agencies and people that can classify information, it still gives powers to the Minister of State Security to give classification powers to other state bodies and junior officials without adequate public consultation.”

Cosatu has also objected. It says despite changes to the bill, it’s still open “to allow just about any state information to be classified”.

Criminal liability for espionage

Right2Know says it worried that 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 national security.

The ACDP has also expressed its concern about what it sees as the low burden of proof placed on the state in cases of espionage. This was an issue raised by Advocate George Bizos during the hearings, but opposition parties says it seems to have been ignored.

Harsh sentences

Right2Know has described the sentences for transgressing the bill as “draconian”. The Bill contains a maximum sentence of 25 years.

Members of Parliament from across the spectrum and activists have acknowledged that the changes over the past year have been substantial. But they want more.

“There have been changes clause by clause, but as a bigger picture, we see it as a step backwards, as it still has a chilling impact on the access to information. There is still an unreasonable restriction on the public’s right to know,” Right2Know spokesperson, Murray Hunter, told Moneyweb.

If all else fails, opposition parties seem resolute that they will challenge the bill in the Constitutional Court.

The Minister of State Security, Siyabonga Cwele, says he’ll welcome this.

“As we have always maintained, the calls for a constitutional court challenge of the bill are taken in the spirit of our country being a constitutional democracy. We would therefore welcome such an action as it is provided for by our constitution and indeed there is nothing to fear in this regard,” he told Parliament.

The ANC sees the bill as a good balance between the constitutional provisions of access to information and limiting access in the interests of advancing national security. It’s satisfied that enough compromises have been made.

But a possible ConCourt challenge and protests may keep the Secrecy bill in the news for a while yet. Right2Know says they’re using Freedom Day, Workers Day and World Press Freedom Day on May 3 to highlight their concerns through workshops, pickets and protests.

This article was written by Kim Cloete and appeared on MoneyWeb on 26 April 2013.