Dear Mr. Burgess,
We welcome your statement of November 1 that your committee, charged with overseeing the passage of the Protection of Information Bill (B6-2010), will be conducting a thorough review of the Bill with a view to narrowing its scope. This is the right decision to make on a matter that has very serious consequences for the effective functioning of South Africa's democratic society. As it currently stands, the bill raises serious concerns about its compatibility with South Africa's human rights obligations under both international treaties to which it is a party and its own Constitution.
We urge you to carry out a comprehensive and detailed redrafting of the Bill. Human Rights Watch recognizes that the government and parliament have a right and a duty to protect against identifiable threats to national security. However, that right and duty must be exercised in a manner that respects, protects, and fulfills the rights to freedom of expression and access to information. We therefore urge the committee to take this opportunity to ensure that a new draft will properly comply with human rights standards, and properly balance the interests of safeguarding legitimate national security goals with the protection of free speech and the securing of democratic governance.
Governing Legal Standards
As you know, South Africa's obligations regarding freedom of information and expression derive from a number of sources: Articles 16 and 32 of the Constitution, Article 19 of the International Covenant on Civil and Political Rights (ICCPR), and Article 9 of the African Charter on Human and People's Rights. While these rights may be subject to restrictions on grounds of national security, the restrictions must be provided for in law, necessary to achieve a specific, permitted purpose, and be proportionate to the aim.
Further, according to the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, which have been endorsed by the United Nations, no restriction on freedom of expression or information on the ground of national security may be imposed unless the government can demonstrate that the restriction is prescribed by law and is necessary to protect a legitimate national security interest. The burden of demonstrating the validity of the restriction rests with the government, which must show that:
- the expression or information at issue poses a serious threat to a legitimate national security interest;
- the restriction imposed is the least restrictive means possible for protecting that interest; and
- the restriction is compatible with democratic principles.
In addition, the Johannesburg Principles state that laws on public information must be accessible, unambiguous, and drawn narrowly and with precision so as to enable individuals to foresee whether a particular action is unlawful. The laws should also provide for adequate safeguards against abuse, including access to prompt, full, and effective judicial scrutiny by an independent court or tribunal of any imposed restriction.