SUBMISSION TO AD HOC COMMITTEE (NCP) ON PROTECTION OF STATE INFORMATION BILL

I make this submission on the basis of my reading of the Bill in question, in the context of a comparative view of similar legislation in other parts of the world. In this regard I refer in particular to legislation in the United Kingdom and Canada, which are established democracies with a commitment to human rights, and Malaysia, where restrictive laws and human rights abuses draw international criticism (see, e.g. Amnesty International reports).

I am, among other things, a human rights defender with expert knowledge of how the powerful apartheid state was able to use control over information in the 1980s to prevent the full horror of what was happening in the townships from becoming public knowledge. There is no doubt in my mind (and I wrote papers about it at the time) that people continued to die because of the lack of freedom of information.

I see parallels with the Bill I am now commenting on, in that it would give far too much power to politically-appointed government officials, especially the Minister of State Security, to decide what information was Top Secret, Secret or confidential, the possession of which by unauthorised persons carries what are in terms of international norms in democratic countries extremely severe penalties.

It must be pointed out that this Minister also has the power to delegate powers to classify information to organs of state other than the various security arms of state, and Heads of Department may also delegate. These categories of classification are similar to those in the Malaysian legislation, which has drawn international criticism as interfering with freedom of expression (a fundamental human right) and using its official Secrets Act to stifle dissent and reduce transparency in government.

The type of penalties that the South African bill sets out are also similar to the Malaysian (although, as I indicate below, it is even harsher than some of the provisions of the Malaysian Act).

This legislation must be rejected in its current form because, regardless of who (i.e. which party) is in government, it places far too much power in the hands of a small group of people, and there are insufficient checks and balances against the abuse of this power. 

The current political context is one in which there is already widespread malfunction in the civil service, including in the SAPS which will be one of the arms of state which is allowed to classify information (a recent example being the declassification of material, apparently for political purposes, by controversial police management member General Richard Mdluli). Such awesome power can easily be used against citizens, including dissenters within a party in government.

I summarise briefly major, specific, concerns with this legislation :

1.The wording is, in places, far too broad. Take, for example, the definition of ‘national security' which includes various areas (i.e. further areas could be added if deemed expedient). One of those areas relates to the ‘threat of use of force'.  The use of force is already endemic in South African society, not only by criminals, but by the police. So, in theory, cover-ups of all manner of violence, including political, and that carried out by the police, could be deemed to be ‘confidential' (or secret/top secret) and withheld from the public. 

Similarly, a person who ‘ought reasonably to have known' that shared information might benefit a foreign state is not as straightforward as it may seem. As Article 19 (Gobal Campaign for Free Expression) points out in its critique of the Malaysian legislation, foreign spies do not usually advertise themselves. While the Canadian legislation (Security of Information Act) has some stringent penalties for transgressors, its definitions are very precise, especially compared with the SA Bill. 

Furthermore, this Canadian legislation was a specific response to the events of September 2011. The South African parliament was told, in June 2011,by the Minister responsible for this legislation that there were no threats to the country - yet months later this bill is rushed through parliament amidst claims of threats from foreign spies. This whole area needs clarification in parliament - this is not the way democracy should work for, if there are threats, the public should know about them.

2. Oversight by a panel appointed by parliament is not independent enough. Nor is the appeal process satisfactory. Members of the public may appeal to the heads of the classifying departments - but clearly whoever wrote this legislation does not know (as I well know - and could give countless examples) that most appeals to heads of department do not even get the courtesy of an acknowledgement, let alone a reply (there are some exceptions). Also, appeals to the court are fine in theory, but unaffordable to most people in practice.

3.As indicated above, the penalties prescribed for possession of different types of classified information are excessive - especially given the broad wording (e.g. ‘benefitting a foreign state' - which is similar to the Malaysian legislation which refers to documents that ‘might be' useful to a foreign country; compare this, e.g. with the specifics of Canadian legislation, where prejudice to the interests of the state are and potential harm to Canadians is spelled out, as are differences between foreign entities, powers, and states).

In Canada, for example, a person permanently bound to secrecy who communicates information, which may or may relate to ‘special operational information' faces a maximum imprisonment of 5 years (less one day) and the maximum such a person faces if the communication shared in special operational material is fourteen years (but see below re:: public interest defence. 

In the United Kingdom,  the maximum penalty for breaking the most recent enactment of the Official Secrets Act, which replaces a section of the older, is two years imprisonment, an unlimited fine, or both. The Act appears to have been difficult to enforce but in one case where there was a conviction - that of Sarah Tisdall, a young Foreign Office clerk who leaked information about the arrival in Britain of a controversial American cruise missiles, Tisdall was sentenced to six months, of which she served three.

Ironically, the penalty for harbouring someone who has breached the legislation is even more severe than that contained in the Malaysian legislation (between one and seven years).

It is also important to place these draconian sentences in the context of sentences served by people who have committed violent crimes, including murder or culpable homicide (there is often a thin line between them - such as in the case of police members convicted of culpable homicide after torturing a man to death) who often serve only a few years - plus the dreadful abuse of prisoners' rights which occurs in South African prisons, including at the hands of prison gangs who have been known to murder other prisoners.

4. The lack of a public interest defence : It is scandalous that government spokespeople, as well as the Minister responsible for this Bill, have told the public that no country in the world allows a public interest defence. This is a blatant untruth.

The Canadian legislation has a very specific public interest defence which stipulates that people will not be found guilty of offences with stringent penalties if it is established that he or she acted in the public interest (Section 15). While the UK does not have a public interest defence it has other safeguards for its citizens - as does the USA (Constitutional provisions).

Furthermore, even when the right to freedom of expression is limited (by clearly defined national security, e.g.) ‘international law requires such restrictions to be drafted in clear and precise legal language [my italics] and to be ‘necessary in a democratic society', meaning that they are a proportionate response to an overriding concern of serious public interest' (from Article 19 critique on Malaysian legislation).

5. Regarding ‘national security' this is not spelled out, as it should be, in clear and precise legal language. In this regard, I refer the parliamentary committee to the Johannesburg Principles (drafted in the city by an international team, working with South African legal academics, in the mid 1990s - which, ironically, appear unknown to the drafters of this legislation) which detail the principles relating to legitimate national security, which should have been taken into account when this legislation was drafted. They are endorsed and utilised by the United Nations, including the Commission on Human Rights.

In conclusion

There is no doubt in my mind that this legislation will, in its current form, severely limit transparency in government, facilitate the abuse of power, and reinforce, through this legislation, the growing culture of secrecy which I, as a human rights defender, encounter all the time. Already the principles enshrined in the Constitution are breached with impunity. 

Despite acts such as the Promotion of Access to Information Act and the Administrative Justice Act I have been finding it increasingly difficult to obtain information from government departments (departments dealing with policing, health, land matters). While there has been much show about taking the Bill in question ‘to the public', this seems to have been mainly a public relations exercise. If councillors, members of the legislatures, and national parliamentarians were doing their jobs properly they would be holding regular report backs to their constituencies about all the legislation before parliament. That is what is required of them in the positions they occupied. With some exceptions, there no indication that is happening. 

This Bill suggests that its drafters and supporters favour the anti-human rights approach of the Malaysian legislation, and rejects that of democratic societies committed to the upholding of human rights - which has extremely ominous implications for building and maintaining democracy in South Africa.

Mary de Haas

17 February 2012

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