Because of immense pressure from civil society, the original draconian version of the Protection of State Information Bill – also known as the Secrecy Bill – tabled in Parliament last year was substantially amended by both houses of Parliament. The version now awaiting President Jacob Zuma’s signatory, while still a thoroughly bad piece of legislation aimed at allowing the covering up of wrongdoing and abuse of power by the intelligence services, is much improved. However, the Bill is unlikely to pass constitutional muster. This is why.

The Secrecy Bill is ostensibly aimed at protecting the “national security” of the country by empowering members of the cabinet, the various security services (including the police and the military) and those bodies overseeing the security services to classify “information” as “confidential”, “secret” or “top secret”. The Minister of State Security is further empowered to grant the power to classify documents to any organ of state or part thereof – although this power cannot be granted to municipalities.

This means that the Minister of State Security has wide powers to authorise other bodies – after approval by Parliament – to classify information. If the Minister (and the majority party in Parliament) wishes to, they could empower any department of state or administration in the national or provincial sphere of government, any other functionary or institution exercising a public power or performing a public function in terms of any legislation and any owner of a facility or installation declared as a National Key Point, to classify information. The head of the Natal Sharks Board, the owner of President Zuma’s private house at Nkandla and the Vice Chancellor of UCT could all be empowered to classify information to protect the “national security” of South Africa.

‘‘Information’’ that can be classified is broadly defined to include not only information contained in documents and electronic recordings but also “verbal announcements”. This means that verbal announcements, say, made to troops sent to the Central African Republic about which private business interests they are tasked to protect could be classified as top secret. Verbal communications between the Guptas and the President or between the Guptas and any Minister or other official would also constitute “information” that could potentially be classified.

Although information can only be classified to protect “national security”, the Bill defines “national security” in a manner that is indeterminate and completely open-ended. The Bill thus states that “national security includes” – but is therefore not limited to – threats against the Republic based on terrorism and sabotage and acts directed at undermining the capacity of the Republic to respond to the use of, or the threat of the use of, force and carrying out of the Republic’s responsibilities to any foreign country.

Because the definition is open-ended, it is conceivable that a cabinet minister or the owner of Nkandla could interpret “national security” in a far broader manner than the examples mentioned in the definition of national security contained in the Bill to include almost anything that, in the mind of the classifier, would threaten “national security”. It would matter not whether this is information about how much money was spent on the upgrade of the private house of President Zuma at Nkandla, how often the Guptas meet with President Zuma and how much money President Zuma and his family have received from the Guptas as long as it could be shown that the information was believed to involve “national security” it would be in line with the provisions of this Bill.

This means that the Secrecy Bill potentially empowers many people at various levels of government (and many organs of state) to censor information in the name of protecting “national security”, thus potentially imposing drastic limits on the right to freedom of expression and the right of access to information. It does so in two interrelated but distinct ways.

First, when information is classified anyone who leaks or holds or publish the information commits a criminal offence, meaning that whistle blowers in possession of incriminating evidence of maladministration, “dirty tricks” by the securocrats, evidence of corruption or of criminal activities will think twice before leaking such information to the media for fear of being sent to jail for up to 25 years. Second, journalists and editors will be fearful of receiving any such information and of publishing it for fear of being sent to jail for long periods of time. The potential chilling effect of this law is therefore obvious and real. Only the foolhardy and exceedingly brave will leak or publish classified information – even if the information was wrongly classified to cover up criminal activity or maladministration.

In order to pass constitutional muster these potentially unconstitutional restrictions on the freedom of expression and information will only be justified if it can be shown that the law struck the a appropriate balance between the need to protect national security, on the one hand, and the need to protect the rights of citizens to the free flow of information, on the other, and if less restrictive means could not have been used to protect national security in an appropriate manner.

Section 8 of the Bill purports to limit the potentially broad scope of the Bill by stating that classification of state information is justifiable only when it is “necessary to protect national security” and by stating that classification may not under any circumstances be used to conceal corruption or any other unlawful act, to avoid criticism, to prevent embarrassment to a person, organisation, or organ of state or agency. The section also includes other guidelines which – if meticulously and honestly followed by the classifier – would substantially narrow the scope of the Bill.

Section 45 of the Bill criminalises the wrongful classification of information while section 46 further determines that a “head of an organ of state or an official of such organ of state who wilfully or in a grossly negligent manner fails to comply with the provisions” of the Bill could be sentenced to two years’ imprisonment. These safeguard would go some way to deter abuse of the Bill, but only if an independent body existed to investigate and to prosecute those who wrongfully classify documents to hide corruption or avoid embarrassment. Of course, there is no independent body that will dare to investigate these crimes and – unless a miracle occurs and a truly brave and impartial person is appointed as National Director of Public Prosecutions – such cases will never be prosecuted either.

Those who defend the constitutionality of the Bill will rely heavily on section 41 of the Bill to argue that it limits the rights no more than is necessary. This is so because the section provides a defence to those charged and prosecuted for disclosing even wrongly classified or corruptly classified information in a limited number of cases, included where the disclosure of the information is authorised by other legislation and where the classified information reveals criminal activity, including any criminal activity in terms of section 45 of the Bill.

Section 41 indeed provides an important safeguard for potential whistle blowers. Whistle blowers and journalists who are exceedingly brave (or just plain stupid or reckless about their own freedom and well-being) might well be prepared to take their chances in the hope that it could be shown that the leaked or published classified information indeed reveals criminal activity.

However, how this defence would work in practice is unclear. In terms of our Constitution every person is presumed to be innocent by a court of law until proven guilty. It is therefore unclear whether this defence in section 41 would be open to a whistle blower or a journalist who receives of publishes classified information that reveals criminal activity in the absence of those involved in the criminal activity actually having been convicted of a crime. How will a whistle blower or a journalist be able to convince a court that the information reveals criminal activity if the criminal activity have not been successfully prosecuted? And how will the criminal activity be successfully prosecuted when the information revealing that criminal activity remains classified? This defence might therefore well turn out to be illusory.

Besides, the defence says nothing about wrongly classified information or information that do not disclose criminality, but does disclose venality, maladministration, abuse of power or just embarrassing information that would harm the political fortunes of those who classified it. Leaking or publishing such information would remain a criminal offence, which means that there would be a huge incentive for classifiers to classify information that reveals maladministration, abuse of power or other wrongdoing that would not rise to the level of actual criminality.

For example, although the use of more than R200 million of public funds to upgrade the private residence of President Zupta at Nkandla was highly embarrassing for the president, no one has been charged with any criminal offence and it is far from clear that a criminal offence was committed when this public funds were allocated to enrich the president. That means if the Secrecy Bill had been in place, all information about the Nkandla upgrade might well have been deemed national security information (protecting a so called “National Key Point”) and journalists who had published articles on the scandal might then have faced a five-year prison term.

The Act also provides for a Review Panel to review classifications of information but the panel is appointed by the majority party in Parliament and is therefore not independent. You can appeal the classification of information, but as it is a criminal offence to be in possession of classified documents it is unclear how you can appeal the classification of documents you are not allowed to know about and that you are not allowed to have in your possession.

In conclusion, given the indeterminate definition of “national security” in the Bill, the potentially broad powers granted to a wide array of people to classify documents, the lack of effective mechanisms to prevent the wrongful classification of information, the Kafkaesque review and appeal mechanisms and the limited and ineffectual defences provided for those who leak or publish classified information that reveals criminal activity or maladministration, I would be more than surprised if the Constitutional Court certifies this Bill as constitutionally valid. DM