Secrecy Bill finalisation deadline moved to September

Comments SANEF chairperson Mondli Makhanya, "We believe important discussions about the aspects of the bill that most affect the media will take place in these meetings. We also believe there is now willingness in some quarters of the ANC to consider amendments in response to the public outcry against it."

The open letter in full:

21 June 2011

Dear Member of Parliament,

The South African National Editors' Forum (Sanef) has noted that the Protection of Information Bill is now scheduled to be finalised by the relevant ad hoc committee of Parliament early in August. Sanef appreciates the important proposed amendments including the removal of "national interest" and "commercial interests" as grounds for secrecy classification, the refinement of the categories of secrecy and the introduction of "balance" between the imperatives of openness and of secrecy.

But we remain gravely concerned about many remaining aspects of the bill and their potential effects on our democratic state. We draw your attention to just five provisions of the bill that could seriously restrict the free flow of information from South Africa's government at all levels to citizens.

We believe:

1. The scope of the proposed authority to classify state information - every organ of state, which are believed to number more than 1,000, but which the office of the State Law Adviser was unable to list - is on its own a telling indication of the carelessness with which that power is handed out. It is a recipe for extensive and unnecessary classification that would be almost impossible to oversee because there is as yet no provision for a credible, independent body to review or hear appeals against decisions to classify information. Nor is there currently any effective mechanism for citizens or civil society to hold officials to account for their interpretation and use of the powers to classify.

2. The power to classify should be strictly limited to those organs of state that guard the national security of the Republic as a whole and not given to parochial bodies that might use the authority to prevent public access to information which might merely be inconvenient to have in the public domain.

3. The prescribed minimum penalties for the unlawful disclosure of classified information are unacceptably harsh - a minimum three-year jail term in many cases for even the most trivial infraction - and out of proportion to the non-custodial penalties applied to officials who abuse their power and classify information to cover up criminal or embarrassing conduct. These mandatory provisions deny judges the discretion to assess the severity of and motivation for the disclosure of classified information.

4. With no overriding legislation to protect whistle blowers, we believe it is crucial that a provision for the disclosure of secrets in the public interest must be included in the bill to make it possible for well-intentioned people throughout the publication chain to disclose classified information that exposes serious criminal behaviour or maladministration in government. It should be left to the courts to decide whether the public interest justified the disclosure and to impose penalties (which should include non-custodial sentences) accordingly without having their hands tied.

5. The bill violates several rights guaranteed in the Constitution, including its Preamble, which calls for "a democratic and open society"; the first Founding Provision, which requires the government to "ensure accountability, responsiveness and openness"; Clause 16 of the Bill of Rights, which guarantees "freedom of the press and other media (and) freedom to receive or impart information or ideas". The restrictions this bill would impose would make it impossible to guarantee the other rights in the Bill of Rights because it could be made impossible to know when, where and how they are being violated. We do not believe the bill meets the test in Clause 36 of the Bill of Rights on the limitation of these rights in that it is not "justifiable in an open and democratic society based on human dignity, equality and freedom..."
   

We editors and senior journalists of South Africa, including its leading news media, urge MPs to shelve the processing of the Protection of Information Bill until the overwhelming opposition voiced during public hearings is given proper weight in its redrafting and to ensure it is not passed into law without amendments to address these crucial threats to the constitutional guarantee of openness and the proper functioning of our democracy.

From Members of the South African National Editors' Forum (SANEF)