Secrecy Bill: It’s all about the minister

By Stephen Grootes 24 November 2011

The Protection of State Information Bill has now gone through the National Assembly, and is now on its way to the National Council of Provinces. In our experience, very rarely, if ever, has our upper house made a substantial change to pending legislation. This means the Bill goes to President Jacob Zuma for his assent. As he is no friend of the media, and is pretty close to State Security Minister Siyabonga Cwele, it seems likely to get the presidential John Hancock quite quickly. And thus it'll be off to Constitution Hill for the posse of hacks, NGOs and worried burghers who await it. How might the Constitutional Court argument against this bill look? By STEPHEN GROOTES.

As always with legal types, it’s a good idea to start with definitions, and some basic principles. The first is that, generally speaking, the Constitutional Court is very aware of the problem of a definition being “overbroad”. That is to say, that a law must have as few unintended consequences as possible. This is likely to be a large weapon in the hands of the angry posse. The bill, as it currently stands, allows any head of government organ (the bill’s definition of which is long and unexpectedly complicated) to ask the minister of state security for permission to classify certain documents. This would seem to vest much power in his hands. The argument would go thus: there is no neutral oversight, a minister, being a political person, cannot necessarily be considered to always have the best of intentions, and thus there should be some other mechanism as part of the process of classifying information.

The other, perhaps very weak point in the legislation, is that once that government organ head (there’s a phrase you don’t see everyday – Ed) has the power, he or she can “may delegate in writing authority to classify information to a subordinate staff member”. The member has to be senior, but that’s not defined. So the lawyers will say, you could end up with literally hundreds or even thousands of people having the power to classify information. Thus it is overbroad.

A major part of the argument is likely to revolve around the role of the minister. Not only is he or she allowed to give people authority to classify information, but all around the bill are references to the minister as the final authority on whether information should stay classified. This is a tricky argument. Someone has to have the final say about when a secret is a secret. The government’s lawyers will argue that that person must be in office through the will of the people, i.e. a representative who was elected. Under our system, that makes the person a member of the ANC, who has then been appointed by Jacob Zuma. The counter will probably be: that that may be so, but you still should not have so much power vested in one individual; that it is inimical to our Constitution not to have a full separation of powers here. This could be the fun part of the legal argument for those who have a more academic, rather than vested interest in the bill.

The bill’s critics will also point, perhaps with some success, to how information can remain classified if it will “clearly and demonstrably impair the ability of government to protect officials or persons for whom protection services, in the interest of national security, are authorised”. As the number of people who seem to receive VIP protection treatment is growing, it should be relatively easy to construct an argument along the lines of: “Julius Malema received VIP protection at one stage, is his house in Sandton now a secret?” What if a crime happened at the home of a person under protection, would you not be able to say who the person was?

A part of this section could also be used to hide foreign leaders on their trips here, as information could remain classified if it would “seriously and demonstrably impair relations between South Africa and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the Republic”.

That, the argument would go, would be the end of reporting on any Zimbabwean politician’s naughtiness in any top Joburg hotel.

An interesting case could be made where the Bill compels anyone who receives classified information to immediately return it to “the agency” or give it to a police officer.  In a constitutional democracy, virtually every law relating to individuals is about what you cannot do. To compel a citizen to take a positive action, to actually do something, is quite rare. The government hardly forces you do anything. If you want to drive, you give up that right because you have to get a license and renew it from time to time; no one forces you to drive. You do have to go to school, you do have to report a birth (although you are not forced to have a child), you no longer have to do military service. In this case, the bill is compelling an individual to do a specific thing, in a specific set of circumstances. It’s one thing for a citizen to receive a document and do nothing – not pass it on, not copy it, nothing. It’s another for a law to say that citizen must perform a specific action, only because they happened to receive it. Imagine a street sweeper who comes across classified documents and simply chucks them in the nearest bin. Could a case be brought against that person if the looked at if first, and thus “knowingly” didn’t hand them in. Some philosophy for the court to chew over.

A major part of the argument is likely to revolve around the sanctions imposed for wrongdoing: the heavy sentences. There are minimum sentences all involving jail time, some of them only start at 15 years. Most countries punish treason (by whatever definition) quite harshly. And anyone who’s read a little Frederick Forsyth knows that usually, if a spy gets caught in enemy turf, they’re as good as dead. The problem here is that ordinary people get caught up in this heavy sentencing procedure. While the mandatory minimum sentences, as stated in the bill, can be reduced if there are “compelling” reasons, they are still pretty tough. An easy-ish victory might lie here. Start with the sentences.

Part of this argument will revolve around the fact that the punishment for publishing classified material is much harsher, and involves a prison term, than the punishment for wrongfully classifying material with an ulterior motive. That is just a fine, or imprisonment up to three years. That seems to be very inconsistent.

Overall a much broader argument against the bill will be about the impact it will have on the free flow of information. It seems pretty clear that once someone has the power to classify information, there simply isn’t much to stop them. And once people get a taste for that kind of thing, they don’t stop. That would allow anyone with corrupt intent to get rich very quickly indeed. The person who will have the most power will be the minister of state security himself. The argument will surely be that there needs to be more oversight, more power out of the hands of a few. It’s a tricky one, and I can think of many arguments against that. But the strongest argument has to be that there will be too many secrets. And too many people to classify them as such. And with that power will come real power. DM

Grootes is an EWN reporter.

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