Monday, November 28, 2011

Why the secrecy bill isn't actually an issue

I can't take it anymore.

The blind headlong rush, to follow the sheep and condemn the ANC.

The OMG, "I now know what it's like to live under Apartheid" Facebook statii.

It's insane, incredible, people falling over themselves to get on the bandwagon.

I suppose it's got to do; partly at least, with people's anger and frustration at being unable to really challenge or fix any of the real societal ills in our country, and this therefore gives them an avenue through which to lash out.

At least, I hope so; I hope that many of the people that I know and respect, aren't completely blinded by propaganda ... by the current mass public hysteria.

The number of people I know who fell over themselves to condemn something they hadn't read was exceptionally disappointing (Read it here, if you still haven't)

I'm not saying that the bill is perfect, not saying that there couldn't be improvements made to it. But, and this is the important part; by and large this Bill is many times better than the Bill introduced last year; and that even with the flaws that this Bill has, it does not in any way signify the "End of Democracy" as so many have put it.

First up, what many people don't know - is the crucial need for this Bill. Classified information in SA, is still controlled by a bill dating back to the Botha era in 1982. That Bill does not make provision for declassification of information, which is why the family of someone like Ahmed Timol, still can not access the information surrounding his death. So, the need for this Bill, is real - we need a way as a country to control classified information and the declassification of that information.

Secondly, people have spoken about how this act will make it impossible for the Media and Whistleblowers to prevent and expose corruption. Unfortunately, this just isn't true at all, for a couple of reasons:

A - The new Act, does not give any state official the right to classify information; only those in the three security departments (i.e. State Security, Defence and Police).

B - The Act, makes it a crime to incorrectly classify information - especially where this is being used to hide evidence of:

(i) " The decision to classify information must be based solely on the conditions set

out in this Act.

(2) (a) Secrecy is justifiable only when it is necessary to protect the national security.

(b) Classification of state information may not under any circumstances be used to—

conceal an unlawful act or omission, incompetence, inefficiency or administrative error;

(ii) restrict access to state information in order to limit scrutiny and thereby avoid criticism;

(iii) prevent embarrassment to a person, organisation, or organ of state or agency;

(iv) unlawfully restrain or lessen competition; or

(v) prevent, delay or obstruct the release of state information that does not require protection under this Act.

(c) The classification of state information is an exceptional measure and should be conducted strictly in accordance with section 12"

Further, the Act prescribes lengthy prison sentences for individuals who improperly classify information.

C - The new Act makes clear provisions for declassification of information, and requires that information that no longer needs to be classified must be declassified and information can not remain classified for more than 20 years except under exceptional circumstances

D - Information requested through access to information laws such as POIA must be reviewed and if the information can not be provided, reasons must be given. Where that information relates to breaking of a law, or environmental harm the information must be declassified

E - The Classification review board, that will review all classification decisions; may not include any state employees or members of political parties-> a simple and very easy way to prevent corruption and cronyism

F - In addition, if the head of a ministry refuses to release information; an application can be made in court - providing even further recourse

Now in addition numerous people have spoken about the harshness and draconian nature of the sentences that can be handed down for violation of this Bill.

If we compare the supposedly “draconian” measures to those prescribed around the world; we find that they are not nearly as harsh as one imagines. The Bill has it’s harshest penalties for someone revealing “Top Secret” (the highest classification) information to a foreign state – espionage in other words. For this the sentence is a minimum of 15 years to a maximum of 25 years. In the US for example, espionage leads to life imprisonment in a time of peace and execution during a time of war.

British law, similarly mandates life imprisonment or execution for espionage offences.

But, many people will cry out, the big issue is really around the “Public Interest Defence”. And yet again we find that the Act, makes provision for this. Section 43 of the Act, specifically allows disclosure of information where that is allowed for under the “Protected Disclosure Act”, or the “Companies Act” or any other law. When talking about evidence of corruption; this falls squarely in line with evidence that should be disclosed under the relevant criminal codes.

Lastly, people have spoken about appeals to the Constitutional Court, and spoken as if the highest court in the land is the only defender of democracy. What needs to be remembered is that not only is the court empowered by “democracy” to act in this matter; in terms of section 80 of the Constitution, this is completely envisioned as a part of a healthy and well functioning democracy.

In short, this is a storm in a teacup and people need to get their knickers out of a knot!