On introducing the Bill to the National Assembly, Minister Cwele stated:
"The African National Congress believes that the changes made to the Bill are a correct response to the valid concerns raised by fellow South Africans .... [and] ensure a fine balance between secrecy and openness...".
Civil society groups, however, continue to insist that the Bill presents a threat to democracy and the citizen's right to know.
When comparing Cwele's comments on controversial elements of the Bill such as criminal sanctions, the right of access to information, and the public interest defence, to the actual provisions of the Bill, it becomes clear that Cwele's introduction failed to take into account critical aspects of the Bill.
1. Criminal sanctions
Cwele stated that "Since 1994, our country has been facing an increasing threat of espionage ... foreign spies continue to steal our sensitive information ...". Cwele then highlighted criminal provisions within the Bill designed to deter that conduct.
While the ANC has not proffered any evidence of foreign spies stealing sensitive information and increasing threats of espionage, there are few that would oppose the inclusion of criminal offences designed to protect the state from acts of espionage or similar activities hostile to the state.
However, there are a few offences included in the Bill that Cwele failed to mention in his speech. Perhaps most alarmingly, the Bill provides that anyone that comes into possession of a state security matter (a matter dealt with by or relating to the functions or any relationship of, the State Security Agency) and retains that information may be imprisoned for up to 10 years. Furthermore, a person who comes into possession of a classified record and fails to turn it over to SAPS or the State Security Agency may be imprisoned for up to 5 years.
This means that if, for example, you receive an email from someone containing classified information that is also a state security matter and you do not hand it back to the government, you may be imprisoned for up to 15 years even if you do not publish or share the information with anyone.
2. The right to information
Cwele claimed that "amendments made by the Ad hoc Committee further enhances the alignment [of the Bill] with the Promotion of Access to Information Act...".
However, the ‘alignment' to which Cwele refers was the insertion by the Ad hoc Committee, just 6 days before that committee passed the Bill, of a provision which means that the Secrecy Bill will simply override PAIA, thus further restricting people's constitutional right to information.
In addition, the Bill creates a new ground for refusing access to information, allowing public bodies to withhold documents from the public based solely on the classified status of the document, without having to justify the refusal based on the more rigorous grounds already laid out in PAIA.
The need for such a restriction on the right to information, over and above restrictions already provided for in terms of PAIA, has not been explained. Indeed, one is left wondering whether Cwele is even aware that information related to national security is already protected from disclosure to the public under PAIA.
3. Public interest defence
Since the inception of the Bill, civil society has argued for a public interest defence clause to be inserted that would allow members of the public prosecuted for releasing, retaining or publishing classified information to defend themselves on the basis that they did so in the public interest.
To date, the ANC has remained steadfast in its refusal to insert such a clause. On Wednesday, Cwele tried to justify the ANC position by claiming "If the court finds there is no such public interest after such disclosure is made, the state will have no recourse as the harm will have been done as a result of such disclosure."
The logic in Cwele's argument is fundamentally flawed.
If Cwele believes that the state would have no recourse in situations where the disclosure was not in the public interest, one has to wonder why provisions have been inserted to prosecute those who disclose information. Any harm that may result from releasing classified information can no more be remedied in the absence of a public interest defence than it could if one were included.
What one supposes Cwele's argument to be is that the inclusion of a public interest defence would encourage members of the public to ‘test their luck' by releasing information and then crossing their fingers and hoping that if they were prosecuted a court would find the disclosure to be in the public interest.
Given that those who unlawfully disclose information would face up to 15 years in prison, it is hard to imagine that the inclusion of a public interest defence would result in a flood of classified information being released. Only those individuals dedicated to our democratic principles who were confident that the information they disclosed would be found to be in the public interest would risk such prison terms.
What happens now?
The Bill has been referred back to the Ad hoc Committee (which has been reconstituted) for consideration of technical amendments. Those technical issues are scheduled to be resolved by 21 November before the Bill is sent back to the National Assembly for a vote on 23 November.
Civil society is calling on the government to withdraw the Bill and follow through on the promise to hold public consultations. If the ANC fail to do so, the Bill seems destined for a prolonged legal challenge on the basis of its questionable constitutionality.