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Tue May 24 10:04:09 SAST 2016

Another View: We're lost in the maze of the secrecy bill

Ronnie Kasrils | 21 August, 2011 00:51
Picture: JAMES OATWAY

The latest version of the Protection of Information Bill being discussed by the ad hoc parliamentary committee is looking more dangerous than ever.

Just what manner of creature are we seeing emerge? The committee is bogged down in a cut-and-paste job, and the legislation is becoming a web of ill-conceived notions, biased towards secrecy and less and less expressing the spirit of our constitution.

When I was considering the need to replace the 1982 Protection of Information Act, which presently governs us, the late Kader Asmal quipped: "Better let sleeping dogs lie." Agreeing that the apartheid-era law needed repealing, however, he advised that I involve human rights lawyers to draft the new legislation. This I did. Our aim was to limit secret information to explicitly defined areas; contribute to a culture of openness befitting our new democracy; and release at the stroke of a pen tons of needlessly classified information from the apartheid-era to the present.

A "public interest defence" clause was to be adopted, after appeal by journalists, to protect from prosecution those exposing government or private sector shenanigans. Unfortunately this work was shelved after I resigned from government. That former draft was firmly based in the policy and principles of our constitution with a restricted view of national security.

This new bill pays lip-service to constitutional rights. It ritually avers "that South Africans should live as equals in peace and harmony to be free from fear and want ..." It declares that "access to information is a basic human right, promoting human dignity, freedom and equity ...". yet it renders all this meaningless by broadening the concept of national security and adding areas of prohibition that, like Topsy, grow and grow.

Among areas where it seeks to protect information from unlawful disclosure are those embracing such amorphous concepts as "the public good", "survival of the state", "economic growth," "free trade" and "commercial interest". These merge indiscriminately with the usual suspects - "violence", "terrorism", "espionage" and "foreign hostilities".

ANC MPs waver under pressure, their spokesman reportedly suggesting that perhaps a definition of national security be dropped altogether. But this is a cop-out. Legislation of this nature cries out for a clearly defined concept of narrow scope both for clarity and to give unambiguous directives to state officials as to what may or may not be classified.

By whom and how will the plethora of forbidden fruit be classified and authorised?

The minister of security will set out the broad categories of information to be classified as "confidential", "secret" and "top secret".

Department heads will then establish the vast areas of what exactly would constitute unlawful disclosure. Authority to classify then descends down a pecking order from national to provincial to local government authorisers.

Who in their right mind could believe this army of faceless bureaucrats operating under vague criteria will constitute a force for liberating state information?

The exact opposite will occur: a culture and ethos of vested interest in keeping secrets will grow as quick and as thickly as weeds. Any system worth its salt would require officials to identify themselves and provide in written form the criteria, reasoning, conditions and duration of classification.

Consider how vaguely this bill deals with the duration that classified information be kept secret. It states: "Once every 10 years the head of an organ of state must review the classified status of the relevant information held ..." and so on down the pecking order.

What hard-pressed officials are going to give much thought and time to the tons of classified information under their control? And how much courage will need to be mustered to declassify information? It is most likely that one 10-year period after another will pass by ad infinitum.

What about the penalties for those that fall foul of this legislation? The bill stipulates a mandatory sentence of between 10 and 25 years for the crime of espionage. A handful of citizens or foreigners will get their just deserts if they manage to sell or steal our really sensitive secrets. But do not allow this to divert attention from the most likely targets of this bill: whistle-blowers, trade unionists, high-minded citizens, social activists, and journalists. A person "who unlawfully discloses classified information" will be subject to a mandatory sentence of three to five years". "A person disclosing information or publishing information prejudicial to state security" will face a mandatory sentence of five to 10 years. Anyone obtaining secret information that could "benefit a non-state actor engaged in hostile activity or prejudice the republic" would be liable to 20 years' imprisonment.

Contrast this with the far more lenient treatment of heads of departments who fail to comply with the responsibilities of this legislation - a sentence of no more than two years being their fate. Officials who deliberately classify information to cover up corruption or dirty deals will face a sentence of no more than three years!

There is absolutely no mention of members of the intelligence services who concoct and manufacture false information. Given the scandalous abuse of state resources for political purposes in recent years, this is an astonishing omission. Members of the committee must be suffering from acute amnesia to ignore this!

It is patently clear that those drafting this legislation have lost their way. In its present form it is anathema to the democracy and freedoms we have fought for.

Asmal said, "Let sleeping dogs lie." What we have now is a dog's breakfast of toxic gruel that needs to be rejected in the public interest.

  • Kasrils is a former minister of intelligence

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