Sunday, September 18, 2011

The sinister heart of the secrecy bill laid bare

18 September, 2011

Let no one side in the conflicts of the past lay claim to moral or legal superiority when it comes to the keeping of secrets.

From the National Party governments of old we inherited, and live to this day under, the Protection of Information Act of 1982. The act allows for a presumption (unless you prove the contrary) that the purpose of publication or disclosure of a secret is a purpose prejudicial to the security or interests of the republic.

From the Mandela cabinet we inherited the MISS - the Minimum Information Security Standards. This classification policy allows inconvenient truths to be classified.

The quest for classification law that would comply with our enshrined information rights began many ministries ago; the simultaneous challenge was to create a declassification regime.

Neither the system, which burned records in the Iscor furnaces on the eve of the transition, nor the struggle find declassification a comfortable prospect.

We know very little about the struggle in exile other than the ANC's own commission reports into human rights violations in the camps, but there are official secrets relating to internal activities which remain as inflammatory as the Iscor furnaces.

By the time Ronnie Kasrils became intelligence minister, government departments were, as a result of the sheer scope of the MISS, straining under the burden of massive amounts of classified documentation.

The ministry set itself the task of writing a law- the Protection of Information Bill - which would answer these questions:
  • What may be classified?
  • By whom?
  • When should declassification occur; who should do it? and
  • What procedures, what systems for review, what reports, what requests should be provided for?
But the questions were not answered in the 2008 Kasrils bill, a hopeless compromise which we consequently allowed to lapse against a looming election date.

They have now been answered. So, what may be classified? Only sensitive information likely to cause demonstrable harm to the national security at three thresholds of damage.

How is "the national security" defined? It is, as it should be, largely about keeping us safe against various forms of force. It excludes lawful political activity, advocacy, protest or dissent.

Whereas the 2008 version asserted that secrecy exists to protect the national interest, the provision now reads, on our formulation following the International Covenant on Civil and Political Rights, that secrecy is justifiable only when necessary to protect national security.

Who may classify? Only the security services, as we argued (as against all 1001 organs of state) with the minister allowing other departments on good cause shown to opt in after gazetting that fact (and yes, there are other departments who should classify).

When does declassification occur? After 20 years, unless prolonged on the criteria that now govern classification; on review against the new criteria, at any time, by the head of a department or institution, but at least every decade; upon a request under the Promotion of Access Information Act for access to information, with full merit-based appeals under that act to the courts. An audit of all classified information has to be performed by each head of an organ of state.

We were ready to adopt Dr Verne Harris of the Nelson Mandela Foundation's recommendation for self-executing declassification.
But do not underestimate the effects of the declassification provisions adopted against the new, strict criteria. And let us say that the reporting and reviewing requirements cannot be faulted. The creation of the Independent Review Panel is the ANC's idea, with the opposition invited to draft.

The panel is independent and it can review, set aside and instruct reclassification.

Why, despite all this, are we voting against this bill? Because we think the offences, particularly of possession and disclosure, and especially in respect of the intelligence services, offend against the right to receive and impart information.

How ironic is it that the one thing on which Kasrils had to concede, given the weakness of his criteria and the width of the application of his bill - the public interest defence - is not included in this redrafted bill?

The point of a public interest defence that states upfront that a bona fide disclosure in furtherance of the public interest shall not constitute an offence is that the dozen or so real investigative journalists in South Africa would not then be prosecuted in the first place.

The ANC would not even consider a compromise draft that constructed a defence on the basis of considerations expressly outlawed in the rewritten bill's conditions for classification - the concealment of unlawful acts, omissions, incompetence and so forth.


For the same reason, we suspect, that a separate offence of possession and disclosure appears in the bill in respect of the intelligence services, at twice the maximum time in prison.

Is it because the intelligence services are once again embarking on political spying as they did before Polokwane and, in fact, ever since the Mbeki cabinet issued a directive to spy on (among others) competition between and within political parties in 2003?

The intelligence services may no longer classify their work except against the intentional undermining of the constitutional order of the Republic.

The undermining of the constitutional order of the Republic is no longer a matter for the political judgment of the intelligence services because amendments to the definition of national security exclude lawful political activity, advocacy, protest or dissent.

But they will try. And that is why we want a public interest defence.
  • Smuts is Democratic Alliance shadow minister of justice and constitutional development

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