/ 6 June 2008

‘An apartheid-era secrecy Bill’

Intelligence Minister Ronnie Kasrils’s own ministerial review commission on intelligence has delivered a sharp critique of the ministry’s new draft Protection of Information Bill.

The Bill, which the Mail & Guardian first reported on earlier this year, is intended to update apartheid-era laws on the security classification and handling of confidential state documents.

Kasrils portrayed it as striking an enlightened balance between the need for secrecy and the constitutional imperative for open and accountable government. However, the M&G raised concerns that it would lead to a blanket of secrecy over government affairs.

Kasrils established the commission, comprising ANC veterans Joe Matthews and Frene Ginwala, and academic Laurie Nathan, to make proposals on how the National Intelligence Agency and the South African Secret Service could be better controlled in the wake of the Billy Masetlha debacle.

That report is still being finalised, but the commission has, at Kasrils’s invitation, published its own commentary on the Protection of Information Bill.

It says that while the Bill recognises the importance of transparency and the free flow of information, it also contains provisions likely to encourage secrecy.

‘In particular, the Bill’s approach to ‘secrecy in the national interest’ is reminiscent of apartheid-era legislation and is in conflict with the constitutional right of access to information.”

The commission views as most problematic the sections dealing with ‘sensitive information” which is defined as ‘information which must be protected from disclosure in order to prevent the national interest of the republic from being endangered”.

They provide so sweeping a basis for non-disclosure of information, it says, that they recall apartheid-era secrecy laws.

The Bill defines the national interest ‘so broadly that the term encompasses almost everything”. It ‘includes all those things of benefit to the republic and its people”; ‘the survival and security of the state and the people of South Africa”; and ‘the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound international relations”.

Problems highlighted by the commission with ‘this overly broad definition” include:

  • It will be extremely difficult to apply in practice, as all state organs will have to decide whether disclosing information might endanger ‘any matter relating to the advancement of the public good” or ‘anything of benefit to the republic and its people” — phrases open to interpretation.
  • The broad definition of ‘national interest” could lead to a chronic over-classification of state information, inconsistent with a democratic dispensation and the Constitution’s emphasis on access to information.
  • The underlying belief that ‘secrecy exists to protect the national interest” is constitutionally unsound. ‘It is not secrecy, but rather transparency and access to information that protect the national interest.”
  • In general the commission notes that the Bill’s notions of ‘prejudicing the republic in its international relations” and ‘harming the interests of the state” are overly broad catch-alls.

    ‘In a democratic society some prejudice and harm arising from the disclosure of information has to be tolerated in the greater interests of freedom, accountability and transparent governance,” it says.

    It also raises concern that decision-making powers regarding requests for the declassification of material are entirely in the hands of the executive.

    It appears there is rush to get the Bill enacted before the end of the current parliamentary sitting.

    It will be dealt with by the ad hoc committee on intelligence legislation and the deadline for submissions is June 13.