ANC passes draconian Protection of Information Act
22 November 2011 Leave a comment
Parliament, Cape Town. The ANC regime on Nov 22 2011 passed its draconian Protection of Information Act with an overwhelming majority – despite a massive public outcry and impassioned petitions from senior editors of all the news purveyors and deeply worried citizens countrywide. South Africans were so depressed about the passing of this Bill that the day now is widely referred to as ‘Black Tuesday’. Depressed senior editors of all the major SA publications walked out of Parliament in protest after the Act was passed. Legal expert Marieke Ehlers explains why they are all so upset.
Some ramifications of the Protection of Information Act
“Access to information is an indispensable right that needs to be protected in order to guarantee democracy. The right of access to information is provided for in Section 32 of Chapter II (Bill of Rights) of the Constitution of South Africa 1996.
“Without transparency and accountability in government, democracy is at risk – if citizens do not have access to information, government cannot be held accountable for its actions, and the media’s role as ‘whistle blower’ becomes dormant. Without transparency and accountability, corruption is inevitable.
Tje Protection of Information Bill (B6-2010) was introduced in the National Assembly (and was approved by the majority of ANC-MPs on November 22 2011. Only two abstained…).
The Bill replaces the old Protection of Information Act, No. 84 of 1982 that still dates from the apartheid era.
Unconstitutional: There have been numerous outcries by the public, scholars, the media, non-governmental organizations and international stakeholders arguing that the proposed Bill is unconstitutional and unfairly limits the right of access to information. In order to determine the merits of these claims, one should analyse the wording of the provisions in the Bill.
The Bill sets out standards for when and how information may be classified; i.e. the procedure that needs to be followed in order to determine whether the right to access to information may be limited.
WHAT CAN BE CLASSIFIED?
The Bill provides for two categories of classified information: information that requires protection against alteration, destruction or loss; and information that requires protection against disclosure.
Information that requires protection against alteration, destruction or loss
Such information is called ‘valuable information’ and should therefore be classified in order to prevent its destruction, alteration or loss.
Information that requires protection against disclosure
This category of information is divided into two types of information that may be classified, namely sensitive information and commercial information.
Sensitive information should be protected from disclosure in order to protect the ‘national interests’ of South Africa. ‘National interest’ is defined in Section 11 of the Bill to include (but is not limited to):
the advancement of the public good;
the protection of all things owned or maintained by the State;
the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound international relations;
the security of the State and its citizens (i.e. protection against crime, foreign attacks or interference);
details regarding police investigations and methods;
political and economic relations with international organisations and foreign governments
economic, scientific or technological matters relating to the State’s stability, security, integrity and development; and
all matters that are protected under the Promotion of Access to Information Act (PAIA).
Commercial information of an organ of state should be protected against disclosure if such disclosure can jeopardise the commercial, financial, business or industrial interest of that organ of state, organisation or individual. Commercial information that may be classified includes (but is not limited to) trade secrets, information that if released will cause financial loss, information that can endanger the national interest of South Africa, as well as government reports that restate classified commercial information.
WHO CAN CLASSIFY INFORMATION?
According to the Bill, any head of an organ of State has the authority to classify information, or to delegate the classification of information to a subordinate staff member.
HOW CAN INFORMATION BE CLASSIFIED?
The Bill provides for three levels of classification, namely:
top secret information
The Bill sets out a number of guidelines that should be followed when classifying information. The first one the list reads: ‘secrecy exists to protect national interests’. Classified information may only be accessed by individuals that have a legitimate need to access the information and who hold the relevant security clearance.
IMPLICATIONS – Ministers and heads of State organs given unlimited discretion to decide what is ‘secret’
The Bill assigns broad competences to the Minister and heads of state organs. At first glance, the Bill seems viable, logical and practical. However, once the provisions are accurately interpreted, it becomes evident that practically any information may be classified in order to protect the ‘national interest’. The term ‘national interest’ has an extremely vague and broad definition and almost everything can be dubbed as being in the ‘national interest’ of a country.
Furthermore, the Bill provides for instituting legal action against individuals who disclose classified information or commit a broad range of other ‘offences’. Sentences include fines as well as imprisonment ranging from three to 25 years. The irony is that the offence of improperly classifying information only carries a sentence of a maximum of three years imprisonment or a lesser fine.
The Bill allows government officials almost unlimited discretion regarding the classification of information – which could lead to extremely long and costly court proceedings to appeal a classification decision. It paves the way for corruption, for instance where illegal transactions are concluded by government; where the government secretly conspires with rogue states; where officials can enrich themselves and where the public is arbitrarily denied the human right to access to information – all of this whilst the citizens remain blissfully unaware of such state action and are thus unable to access important evidence regarding corruption.
Any information can be labelled as ‘classified’
There is an obvious contradiction between the preamble and what is provided for in the remaining part of the Bill; the proposed act is aimed at regulating the manner in which State information may be protected and reiterates that transparency and accountability should be promoted, however, it also leaves an open door for any information to be labelled as ‘classified’ in the national interest. Instead of promoting ‘national interest’ and ensuring effective government, the Bill would in fact endanger democracy in South Africa. In countries with single party dominance (as is the case with the ANC, South Africa’s ruling party), national interest can easily be confused with the interests of the ruling political party.
Protection of Information act: