The Secrecy Bill: Speak Now or Forever be Gagged

By Dale T. McKinley · 8 Jun 2011

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Picture credit: kasamaproject.org
Picture credit: kasamaproject.org

I have no doubt that there are many people (besides myself) who have temporarily entertained the thought of publicly expressing their opposition to the marriage of certain acquaintances/ friends/family members at that point in those ceremonies when the officiator asks if there is ‘anyone who has reason … to speak or forever hold your peace’. Of course, regardless of how convinced we might be that the marriage is not a good idea such an inclination is quickly buried, our mouths remain firmly shut and things proceed as normal.

Even if it is not a marriage ceremony involving those close to us, the present parliamentary process around the officially named Protection of Information Bill (POIB) – otherwise popularly known as the ‘Secrecy Bill’ – presents us with a comparable situation. A sizeable number of civil society organisations, political parties and ordinary people have already publicly voiced their opposition to the Bill, effectively forcing the ANC as officiator to temporarily extend the timeframe for the Bill’s passage by two more months. 

Despite this, it is clear that unless many more speak out now, the ANC will use its parliamentary majority to pass a Bill that will ‘normalise’ the gagging of the very democracy that so many inside and outside this country struggled and sacrificed to realise. Simply put, we are at a point when the people of South Africa should put aside political party competition/loyalty, historic ideological divisiveness and personal interest. Everyone needs to stand up, speak out and put a stop to what now represents an enforced ‘marriage’ of elite convenience.

One of the main reasons why governments and ruling party’s tend to get away with passing legislation that so patently violates both their own pronounced politico-moral principles and basic human (and in our case, constitutional) rights is because the majority of the citizenry remain silent. Such silence is all the more deafening in a democratic society where freedom of expression and freedom to access information are two of the foundational principles. Given that it is these two principles, these two fundamental rights that are now under serious threat from the Secrecy Bill it would be a tragic irony if they were not exercised to their fullest as part of the very struggle to prevent their demise.

Here’s the ‘catch’ though. The majority cannot fully exercise the freedom to express themselves without having access to the very information needed to inform that expression. In the case of the Secrecy Bill, the fact is that the majority of those who live in South Africa do not know what it actually says. Without such information, the connections that people can then make to how the Secrecy Bill will impact directly on their own lives, organisations and communities will be limited.  While the Secrecy Bill is certainly no longer a secret in itself, its key contents remain largely in the shadows. So, what is it in the Secrecy Bill that everyone needs to know?

Clause 1 of the Bill defines ‘national security’ (which is the base term of reference for related information that the Bill seeks to ‘protect’) as: “the resolve of South Africans as individuals and as a nation to live as equals, to live in peace and harmony, to be free from fear and want, and to seek a better life and includes protection of the people and occupants of the Republic from hostile acts of foreign intervention, terrorist and related activities, espionage and violence whether directed from or committed within the Republic or not …”. This definition is cast so broadly that virtually any information might fall under its net and most notably for ordinary citizens, information that has to do with policy and activity centred on struggles for socio-economic equality, human dignity and a crime-free society. 

The Bill applies (in clause 3) to all organs of the state.  As per section 239 in the Constitution this covers “any department of state or administration in the national, provincial or local sphere of government or any other functionary or institution exercising a power or performing a function in terms of the Constitution, provincial constitutions [and] any legislation” in addition to all ‘national key points’ (such as private oil refineries). This means that your local Municipal Council or Community Development Forum, the National Energy Regulator, the Human Rights Commission and the national Department of Human Settlements could all be given the power to classify (‘protect’) information. It doesn’t take a legal or governance expert to figure out what this might mean for societal transparency and public accountability. Better dust off those copies of George Orwell’s Animal Farm and 1984.

Clause 7 which covers the standards for managing state information gives the Minister of State Security virtual carte blanche power to “prescribe broad categories and sub-categories that may be classified, downgraded and de-classified …” Further clauses provide for these powers to be delegated all the way down to relatively junior officials in every organ of state. Besides the absence of any requirement for there to be written reasons for classification though, these provisions also allow for the various “heads of an organ of state” to be the ultimate arbiters of any declassification appeals that any brave soul might instigate. Such appeals however, are highly unlikely since anyone possessing or having knowledge of classified information in the first place would, according to the Bill, be in violation of the law and thus in all probability, have to file the appeal from the comfort of a jail cell. 

No doubt sensing that such self-contained provisions for appeal would dismally fail a constitutional test, the ANC has recently added two clauses (21 and 22) that would set up a classification review panel. However, given that panel members are to be appointed by the Minister of State Security and would report to parliament’s Joint Standing Committee on Intelligence (which most often has closed door meetings) it would take an extremely naïve optimist to imagine there would be any meaningful degree of independence and transparent oversight. So much for our constitutionally enshrined right to ‘just administrative action’.

And lastly, from clauses 32-45 the Bill sets out a range of offences that cover everything from obtaining, possessing, intercepting and disclosing classified information as well as aiding and abetting a person to do any of the above. The penalties, which for most all these offences range from a minimum of 5 years to a maximum of 25 years in prison and in many cases without the option of a fine, will be determined by the level at which the information is classified (i.e. confidential, secret and top-secret) and the nature of the offence committed. Since there is no public interest defence clause – something the ANC has flatly refused to include – the Bill makes it virtually impossible for any worker, community member, government official or ordinary citizen to independently possess and disclose any classified information in the public interest without being a criminal. We all know what this means; increased self-censorship, a death knell for whistle-blowing and a generalised climate of fear. The various South African Mafiosi couldn’t have asked for a better legalised protection racket.

No, the Secrecy Bill is neither a cruel joke nor political play-making fiction. A little over a month ago during a sitting of the parliamentary ad-hoc committee tasked with processing the Secrecy Bill, there was a discussion about international examples of information classification. ANC MP Vytjie Mentor energetically argued that Zimbabwe was a good example of how information could be successfully kept secret and thus was worthy of the committee’s closer attention as it fashioned South Africa’s own secrecy legislation. 

It is all very real and even more dangerous. None of us can afford to keep our mouths shut or else they will be shut for us.

Dr. McKinley is an independent writer, researcher and lecturer as well as political activist.

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Comments

Joburg Advocacy Group
8 Jun

Just Administrative Action

Excellent commentary. Just one additional point worth making: 'just administrative action' hit the dirt ages ago - the Joburg billing crisis is just one case in point ...

P.S. Scary, scary, scary that the ANC is arguing Zimbabwe is a positive example we in SA should emulate.

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Amanda Madamx
8 Jun

The Bill Breaches My Constitutional Rights

I am a whistleblower in a number of so - called 'sensitive cases' and this Bill is aimed at keeping people like me silent. It will ensure that those corrupt officials who have the connections to intimidate and threaten anyone who poses a risk of exposure for them, can be dealt with, and all away from the public eye.

Irrespective whether the Bill is passed or not, there will always be people that demand answers and journalists that will be prepared to expose it all.

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andre
8 Jun

Bill of Information Suppressed

Allowing this bill to go through will suppress honesty and transparency, allowing more corruption, shooting the messenger alias whistle blower, our country falling into terror and anarchy. Is this what all the new fought freedom was about?

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MandySA
8 Jun

Questions

1. How can a bill that contradicts the constitution be passed into law?

2. What channels of communication does the ordinary citizen use to voice opposition to something like this, and how does one maximise the effect of such opposition?

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nazeer
8 Jun

A Step Backwards

This bill is bad news. It should be stopped from seeing the light of day in its present form. All citizens should write to their councillors and express their displeasure with this bill. This is not what an open and democratic society is all about. Communities must realise this bill will increase the potential for maladministration, corruption, incompetence and misappropriation and wasting of public funds. Access to information is crucial if we are to keep public officials accountable and promote democracy. This bill is a step backwards.

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PENPOPE
8 Jun

Secrets

Can't these people get it? You don't keep any secret by locking people's mouths. You only make liking secrets become an heroic act. And there are hundreds of countrymen out there who have such aspirations.

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KimK
9 Jun

Secrecy Bill

Thank you for the clear break-down of the key issues. I have signed a petition, who do I write to to restate my opposition?

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Rory Short
11 Jun

Protection? What protection?


Under the covers it would seem that politicians are basically all the same. The Apartheid regime passed the Extension of University Education Act which in its very spirit and essence contradicted the very spirit and essence of university education. Now we have from the ANC a Protection of Information Bill the very essence and spirit of which is to destroy information. Information hidden away is information destroyed. In a democracy information that is not publicly accessible is not information.

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