Not in the national interest

Sam Sole Author

16 JUL 2010, 04:00

6 min read

It's an elephant dressed up as a sheep, the M&G told Parliament when the draconian Protection of Information Bill was introduced. It went away, but now it's back. Be afraid, writes Sam Sole

The Protection of Information Bill is the most draconian piece of legislation to come before our democratic Parliament. If it is not radically amended by the ad hoc parliamentary committee that is now hearing representations — including those from the Mail & Guardian and amaBhungane — it will represent a dramatic incursion into the ideals of open and accountable government, which are cornerstones of the Constitution. Indeed, in its present form, it would face immediate constitutional challenge.

When the Bill was first introduced in 2008, we gave its sponsor, Ronnie Kasrils, the then intelligence minister, the benefit of the doubt. He clearly wanted legislation that would protect legitimate state secrets but be responsive to constitutional imperatives of transparency.

But his drafters let him down and they would have created a law that would have allowed every organ of state — from government departments and parastatals to the smallest municipality — to throw a blanket of secrecy over its documents, a blanket nailed down by criminal sanctions.

When the M&G gave evidence to the committee in 2008, we said: "We can't say this Bill is a wolf in sheep's clothing — we accept that its intentions are honorable. But perhaps it's more accurate to say the Bill is an elephant dressed up as a sheep: from a distance it looks relatively benign, but up closer you realise it is going to develop into something very large and unmanageable with the potential to do a great deal of damage."

The Bill was heavily criticised, including by Kasrils' own Intelligence Review Commission, set up in the wake of the hoax-email saga. The legislation was withdrawn, but it seems now that this had more to do with the fall of the Thabo Mbeki administration than any real appreciation of its flaws. Because the Bill is back — and it's even more of a monster than before.

This time round we have to question its intentions, given that its shortcomings were pointed out before and the key aspects that will criminalise whistle-blowers and investigative journalists are even worse.

So what are the problems?

Both democracy and the media need and rely on the free flow of information and, perhaps especially, sensitive information.

This Bill will strangle that in several key ways:

Through chronic over-classification;

Through safeguards that are symbolic rather than practical;

Through adopting a sledgehammer approach to criminalising unauthorised disclosure; and

Through failing to recognise that unauthorised disclosure in the public interest deserves special protection.

Why will there be over-classification?

The Bill permits documents at all levels of state to be classified if their disclosure "may be harmful to the security or national interest of the Republic". The term "national interest" is defined so widely in the Bill, including "all matters relating to the advancement of the public good", that almost anything might qualify for classification.

The term "may be harmful" sets no lower limit on the probability of harm – something that has only a very remote chance of causing harm could qualify.

The Bill allows commercial information held by the state to be easily classified, which will mean tender processes and the activities of state-run enterprises are likely to be shielded from public scrutiny. This will have a negative impact on competitiveness and accountability in the government and will promote corruption.

The right to classify information is widely distributed and delegated, which will lead to a lack of control of classification and inconsistencies in approach.

Whole categories of information can be classified, meaning that a category in which only 1% of information is truly sensitive will erroneously permit the classification of the other 99%.

Why are the safeguards insufficient?

The procedures are subjective and self-applied; there is no independent monitoring or appeal process. There is no independent ombud; appeals are made to the minister.

The Bill's classification process is onerous and therefore it will be poorly applied in practice.

Challenging individual classifications through the courts is expensive and time-consuming and has no impact on weaknesses in the overall system.

What's wrong with the Bill's "big stick" approach to criminalisation?

It penalises unauthorised possession or disclosure, even if there is no intent to prejudice the national interest.

It makes members of the public or journalists as guilty as those who disclose classified information. The possessor and the publisher are as guilty as the "leaker".

It shifts the onus for keeping secrets secret from the officials responsible.

In a move that appears tailor-made to stop whistle-blowing, the Bill criminalises the unauthorised disclosure of information even if it is not classified but that the state could be entitled to withhold if the information was the subject of an access-to-information request.

There are harsh imprisonment penalties attached to relatively low levels of potential harm to the "national interest".

Finally, why should unauthorised disclosure be protected from criminal sanction when it is in the public interest?

This recommendation was accepted in principle by Kasrils, but not adopted in the revised Bill.

Allowing disclosure, even of classified information, in clear defence of the public interest would undo much of the Bill's potential for harm.

The non-disclosure of some classified information could be more of a threat to the national interest than disclosure. For example, if classified security warnings went unheeded, it could be in the national interest to disclose them.

Abuses within the security sector could be exposed by the disclosure of classified information — we think of the Browse Mole report, or the hoax emails.

Fraud committed against the government or the public could be exposed by the disclosure of classified information.

So what now?

This is a turning point for transparency in South Africa. The Bill can still be changed.

Those who have echoed similar concerns to the M&G include Cosatu, the Institute for Security Studies, the South African National Editors' Forum and Print Media SA.

We all need to urge the committee to have the courage to embrace openness and tame the elephant.