Opinionista Alison Tilley 26 March 2014

The Secrecy Bill: More dangerous than ever

The Public Protector’s investigation took approximately two years, exceeding the target time set and facing significant delays along the way. And meanwhile, the questions around secrecy –inconveniently for some – keep cropping back up.

Eventually, the chickens come home to roost. In this case in a rather nice coop, but somehow, those chickens, they always do. Civil society has been warning about secrecy, and its potential to mask corruption, for some time. The Public Protector raised concerns about secrecy hindering her work in her submission to the ad hoc Parliamentary Committee dealing with the Secrecy Bill some time ago. Although her concerns were about secrecy in general, she was most particularly concerned about the effect of classification on the work of her office.

She said, on the 17 February 2012:

The functioning of the Public Protector is directly affected by the POSIB to the extent that she has to rely extensively on the media and whistleblowers to report issues of fraud, corruption and service delivery failures within organs of state. To execute her/his constitutional mandate, the Public Protector requires unrestricted access to organisations and state institutions and any information and documents, including classified information, held by the State in relation to any complaint within her jurisdiction. The POSIB does not take heed of the Constitutional imperative on organs of State to, through legislative and other measures assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of the Constitutional institutions.

Prescient. One issue delaying the Nkandla report was identified by the Public Protector as indeed being access to classified information. She says:

Some of the information obtained during the investigation was classified as “Top Secret”. In terms of the provisions of the Minimum Information Security Standards policy, this means that the information is regarded as being of such a nature that its unauthorized disclosure/exposure can be used by malicious/opposing/hostile elements to neutralize the objectives and functions of institutions and/or the state.

This is the Cabinet policy that government, and most particularly Barry Gilder, ex head of the National Intelligence Agency, has conceded in Parliament as being unconstitutional, and ultra vires. It’s the most important policy used to regulate access to records in the hands of the state. And according to Wits academic Jon Klaaren, it has its genesis as a “military information security policy [that] has been crudely and inappropriately adapted to attempt to cover the entire public sector.” This over-broadness is a result both of MISS’s current application across all state and the extraordinarily wide range of information which MISS imagines should be protected.

The Public Protector went on to say in her submission in 2012 that a public interest override, which by that stage had been included in the Bill, was

“not the same as a public interest defence clause which is defined as a defence which allows anybody who disclosed classified or protected information to avoid criminality, by claiming it was in the public interest to do so, for example section 15 of the Security of Information Act of 1985, which regulates the classification of state secrets in Canada and creates offences relating to the leaking of documents and possession of documents classified as secret, contains a specific public interest defence.”

Civil society was derided by some as somewhat hysterical in its reception of the Secrecy Bill. Many changes to the legislation have not given much comfort to those who saw examples internationally such as the US government making every effort to hide the footage of the Apache helicopter attack on Reuters journalists in Baghdad. The actual wrongdoing being covered up in this case has proved more prosaic. But precisely what we were concerned about has come to pass – the state using secrecy laws to try to hide evidence of wrongdoing from a Chapter Nine institution, and the public.

So ironically, one front and centre issue delaying the 2013 Nkandla report was identified by the Public Protector as access to classified information, or perhaps the lack of it:

Some of the information obtained during the investigation was classified as “Top Secret”. In terms of the provisions of the Minimum Information Security Standards policy, this means that the information is regarded as being of such a nature that its unauthorized disclosure/exposure can be used by malicious/opposing/hostile elements to neutralize the objectives and functions of institutions and/or the state.

This is the Cabinet policy that I said government has conceded, in Parliament, as being unconstitutional, and ultra vires. Despite this, the Public Protector was denied information declared to be classified. For example, the PP says in relation to the Nkandla Task Team report:

“Despite my several requests, I was not furnished with a copy, but only allowed to peruse the contents thereof, after which it had to be returned to the officials of the Ministry of Public Works and the Department of State Security, due to the fact that it was classified.”

Madonsela says, in addition, that she believes she can’t be denied access because of classification.

“It was noted during my investigation to date that reference is often made to the fact that the information that I requested is classified or ‘Top Secret’ and could therefore not be provided to me.

The PP says in relation to the Task Team report:

“Despite my several requests, I was not furnished with a copy, but only allowed to peruse the contents thereof, after which it had to be returned to the officials of the Ministry of Public Works and the Department of State Security, due to the fact that it was classified.”

The essential allegation of civil society, that secrecy would be used to cover up national security wrongdoing, amongst others, has been proved correct.

Again.

Roberta Nation, State Security Agency whistleblower, was dismissed after she blew the whistle on fraud in the Agency. In again rather prosaic ways, the state was not stopping spies from buying sunglasses and baby formula from the chemist, and claiming it on the generous, but not that generous, medical aid run especially for our spies. She continues to fight for her job, after being dismissed.

In 2008 ODAC pointed out that in the first version of the Secrecy Bill,

“The issue of the public interest is inadequately covered and elaborated in the Bill. It seems clear that a mandate to release information through a general public interest override should be built into the Bill, as well as explicit protection for whistleblowers.”

The Bill was withdrawn in the chaos of the recall of Mbeki, with the reason being given that the Bill was problematic, and needed redrafting. When reintroduced, it had become significantly worse.

Some three years later, the MISS, the Protection of State Information Act 1982, and National Key Points Act remain in place, despite their dodgy constitutional status. In spite of those Apartheid tools to hand, this government have proved rather inept in keeping secrets. Their solution is the one of weak states everywhere – to try to make more and more secret, and require more and more people to be secret keepers. But then again, no wonder the architect of Nkandla didn’t have security clearance – the back log of applicants went back some years when I last enquired after it.

And the result is also the fate of weak, and strong, states everywhere, to find the information slipping through their fingers. National security is not a matter of casting the net wider and wider – as a previous Ambassador of a Sweden, a country famous for its transparency said to us, “We have our secrets, but we keep them very, very secret.” Once information is genuinely a national security risk, resources and dedicated, highly trained people need to be used to keep that secret. It is my contention that architects and chicken coops don’t count, and when classification is used to try and shield the chicken coops from scrutiny, the result is both detrimental to our Chapter Nine institutions, as predicted by Madonsela, and the whole credibility of ‘national security.’

The president hesitates to sign the Secrecy Bill – after so many assurances from the Chief State law advisor that it is constitutional, in all its forms, I wonder why? The Minister of Police is directed to review the National Key Points Act, something he has been promising to do, as well as the Minister of Justice promising in other remarks to review the protections for whistleblowers in the Protected Disclosures Act. Everyone promises to behave well, on the understanding that no one concedes behaving badly.

And the case for a public interest defence clause in the Secrecy Bill only grows stronger. DM

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