Learner’s Submission: Access and Protection to Information in South Africa

“Tuesday, the 22nd of November 2011 (Black Tuesday), marked the passing of the controversial Protection of State Information Bill (Secrecy Bill) by the African National Congress (ANC) dominated National Assembly in South Africa.

Although it is still a proposed law and has now been referred to the National Council of Provinces(NCOP) – the lower house of parliament – for further consultations, it has been widely critised for its provisions that could help the government hide corruption and is in direct contravention of the 1995 Freedom Charter.

The following are some of the contents of this piece of legislation:

  • There are espionage and hostile activities offenses which punish the communication of classified information which the person “knows or ought reasonably to have known would directly or indirectly benefit” a foreign state or a non-state actor, or prejudice national security. These offenses attract jail terms ranging from 3 years to 25 years;
  • Intentionally accessing classified information or unauthorized possession of classified material is a criminal act and can land one in jail for up to 10 years;
  • Foreign spies are required to register their status as agents with the government or face between 3 to 5 years in prison;
  • Any head of an organ of state may classify or reclassify information. The State Security Ministry is the custodian of all classified information and material remains classified for no longer than 20 years, unless the state provides a compelling reason to keep it secret;
  • Disclosing classified information unless protected under the Protected Disclosure Act or the Companies Act is punishable by a fine or a maximum jail term of 5 years;
  • Failing to report the possession of and to return a classified document attracts a fine or a maximum 5-year jail sentence;
  • The branch that classifies information can decide whether to grant requests for declassification;
  • Computer hacking of state records is a criminal offense which attracts a jail sentence of 5 years to 10 years.

The criminal sanctions this bill seeks to impose are very stiff indeed and of great concern, is the absence of a public interest defense clause, which would allow journalists to publish classified information without fear of being arrested for exposing wrongdoing in government or any state organ. It would allow careful decisions to be made by the journalist and editor concerned about whether the public interest indeed justifies disclosure, and if this decision is wrong, there will be criminal law consequences.

In 2002, the African Commission on Human and People’s Rights adopted the Declaration of Principles on Freedom of Expression in Africa, which states:

  • Public bodies hold information not for themselves but as custodians of the public good and everyone has the right to access this information, subject only to clearly defined rules established by law;
  • The right to information shall be guaranteed by law in accordance with the following principles;
  • Everyone has the right to access to information held by public bodies;
  • Everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right;
  • Any refusal to disclose information shall be subject to appeal to an independent body and/or the courts;
  • Public bodies shall be required, even in the absence of a request, actively to publish important information of significant public interest;
  • No one shall be subject to any sanction for releasing in good faith information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment save where the imposition of sanctions serves a legitimate interest and is necessary in a democratic society;
  • Secrecy laws shall be amended as necessary to comply with freedom of information principles;
  • Everyone has the right to access and update or otherwise correct their personal information, whether it is held by public or by private bodies.

In the meantime the ruling Tripartite Alliance is clearly divided over this piece of proposed legislation which has already been passed by the National Assembly.” – Butholezwe Bhebhe – Johannesburg, South Africa


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