The Protection of State Information Bill, drawn up by South Africa's Minister for State Security, was passed by the National Assembly in November 2011 despite serious concerns raised by a wide range of CSOs about its unconstitutionality and incompatibility with the International Covenant on Civil and Political Rights, to which South Africa is a party. The bill is presently being considered by the South African National Council of Provinces which is undertaking a country-wide consultation process. If passed by the National Council of Provinces, the bill will be sent to the President for signing into law.
"Passage of the bill will constitute a major setback for South Africa's democracy, weakening people's ability to tackle corruption and challenge official wrongdoing," said Ingrid Srinath, Secretary General of CIVICUS. "It will not only muzzle media and civil society nationally but also severely tarnish South Africa's reputation as a role model for democratic standards around the world."
In a submission to the South African Parliament, CIVICUS has raised four key concerns with regard to the bill.
First, the bill contains heavy punishments of up to 25 years' imprisonment for a range of offences which include communicating, delivering, receiving or being in possession of classified information. Even failing to report possession of classified information is an offence. Tellingly, the bill fails to include a 'public interest defence' to give legal cover to public spirited individuals, journalists and members of civil society who expose information to advance transparency and good governance. The draconian nature of the punishments and the absence of a 'public interest defence' are likely to instil fear among whistleblowers, potentially inhibiting the legitimate uncovering of information in the public interest.
Second, the bill gives the Minister of State Security wide discretion to extend the power to classify information in the "national interest" to any state agency. Security services and constitutional oversight bodies are already vested with this power under the bill. This discretionary power leaves ample scope for arbitrary action to further prevent the flow of information in the interests of the people.
Third, the bill contains a too broad definition of 'national security' which can be invoked to withhold public access to a wide swathe of information on commercial matters, such as factors determining the adoption of economic policies and the operations of parastatal organisations.
Finally, the bill fails to enable independent and timely review of individual complaints by a quasi-judicial body if access to information is denied under its provisions.
CIVICUS believes that passing of the Protection of State Information Bill, 2011 will do irreparable harm to cherished constitutional freedoms, and will breach obligations owed to the South African people under international law.
CIVICUS urges the South African National Council of Provinces to (i) reject the current version of the bill, and (ii) to ensure that any new version of the bill addresses the highlighted fundamental flaws.
