The Bill appears to pay token respect to the tenets of the Constitution but leaves much to be desired in terms of operational efficacy and adherence to the doctrines of transparency and openness and the rights of the public to freedom of expression and access to information. The Bill appears to be about preventing proper and appropriate public investigation of the activities of "organs of state."
This legislation was the subject of numerous submissions to the Ad Hoc Committee on Intelligence Legislation during 2008 and has been roundly criticised for failing to meet the acid test of constitutionality. The Bill was intended to replace the Protection of Information Act of 1982 and to place a great deal more information in the public domain. Regrettably, severe doubts exist as to whether the Bill, in its current form, will achieve this objective.
The current Act has been on the statute books for over a quarter of a century and was an effective mechanism to hide many of the evils of the state and to entrench the powers of the executive and security apparatus of the government of the day. It is characterised by sweeping powers, a very wide ambit and a general disregard for human rights. It is precisely because of the nature of the existing Act, and its gross misuse in the past, that one must be extremely circumspect in appraisal of the new Bill.
According to the FXI, the most shocking element of the Bill is the vastness of the term "national interest." This term forms the basis upon which information may be classified by any organ of state, including a facility or installation declared as a national key point, and any natural or juristic person upon which the Bill places obligations. Included in the definition of national interest are "all matters relating to the advancement of the public good." This encapsulates virtually everything in contemporary society. Any action taken by the State could conceivably be justified as being in the national interest and hence classifiable.
The ambit of the Bill should be restricted to matters, which are strictly to do with the preservation of national security and matters directly related thereto. The Promotion of Access to Information (PAIA) Act 2 of 2000 regulates the protection of personal, commercial, confidential, economic, research and privileged information, to mention a few, and the disclosure of these categories of information by and in respect of both public and private bodies. There appears to be an unnecessary overlapping of the area in which PAIA and the Bill will operate, which will inevitably result in a climate of uncertainly surrounding access to information. It is interesting to note that PAIA provides for the disclosure of information that would usually be protected from disclosure, in circumstances where the public interest in the disclosure of the record clearly outweighs the harm contemplated by the specific provision in PAIA.
The Ministry has specifically elected not to include a similar "public interest" provision in the Bill to protect journalists and investigators in the vital function that they fulfil in our democracy. This omission is clearly indicative of an attempt to curtail criticism and investigation of wrong doings and corruption within organs of state.
The Bill introduces severe penalties of up to five years imprisonment for the disclosure of classified information and the failure to report the possession of such information. A journalist or investigator, who quite rightly pursues the truth, faces the prospect of a complex legal battle with attendant costs, personal discomfort and intimidation. This cocktail is a powerful disincentive to any diligent investigator seeking to provide truthful comment to the public.
The Bill also contains sweeping provisions, which grant rights to political functionaries to "classified" information. The net upshot of this is a negation of the public's right to know and is exceptionally subjective. The attempt to ensconce political hegemony is nothing more than an extension of the invasion of individual rights.
No proper measures are included in the Bill to address the public's concerns about abuse of power and information. The absence of an external oversight body - for example an Ombudsman's office - remains a fundamental flaw in the Bill, which could lead to abuse. It is our view that, in order to ensure that adequate checks and balances are contained in the Bill, it is crucial that such a body be established and appointed by the representatives of civil society.
Given the volatility of South Africa, it is entirely possible that the Minister could easily invoke these powers to maintain secrecy where controversial situations exist. One forms the distinct impression that the Ministry, while prepared to unveil past wrongs, is armouring itself against the unveiling of misdemeanours of the present government.
Perhaps the most insidious provision in the Bill is section 23(6). This permits the head of an organ of state to refuse to confirm or deny that information exists where the existence of such information is itself classified as top secret. By its very nature, this section is unconstitutional, seeking as it does to avoid transparency and openness, and placing an inordinate burden on journalists and legal practitioners seeking clarity on classified documents. It is virtually impossible to draft proper papers for a status review when the existence of the information cannot be verified.
All of this smacks of an attempt to eliminate genuine criticism and to entrench the powers of the executive. This in turn does not serve a purpose but instead simply fuels an extension of the executive's power and makes the judiciary its handmaiden. While we must applaud the notion that the Bill set out to be constitutional, too many gremlins remain. One is left with the impression that old habits die hard and that the executive's obsession with control has won out over the attempt to manufacture a truly novel and fair Bill.
In line with constitutional principles, it is vital that we rigorously resist any attempt to undermine the right of the public at large to obtain accurate and essential information, which pertains to their daily lives. Any attempt to restrict or undermine the public's right to information should be extremely limited and should pass constitutional muster.
