South African activists vow to fight on after MPs pass ‘secrecy bill’

Protests against the secrecy bill in Cape Town in November 2011, when the national assembly first approved it. The bill has been passed by 189 votes to 74, with one absention. Photograph: Mike Hutchings/Reuters

The Guardian

Freedom of speech campaigners warn that bill could have ‘chilling effect’ on those seeking to expose official corruption

David Smith

Campaigners in South Africa have vowed “this fight is not over” after MPs passed widely condemned secrecy laws that could threaten whistleblowers and journalists with jail terms of up to 25 years. The protection of state information bill, dubbed the “secrecy bill” by its opponents, was passed by 189 votes to 74, with one abstension, in a parliament dominated by the African National Congress (ANC). It is now a formality for President Jacob Zuma to sign it into law.

Freedom of speech activists acknowledge that the bill has been greatly improved and amended during five years of fierce national debate. But they warn that it still contains ambiguities and harsh penalties that could have a “chilling effect” on those seeking to expose official corruption. They intend to challenge the legislation in the highest court in the land.

During Thursday’s debate Siyabonga Cwele, the state security minister, told parliament that the bill would “strengthen democracy while balancing transparency and protecting our national security and national interests”.

He added: “There is no one who can hide corruption through this act.” He claimed that the revised bill provides whistleblowers with protection.

But the bill came under attack from opposition members. “This fight is not over,” was how Lindiwe Mazibuko, parliamentary leader of the Democratic Alliance, began her speech. She argued that the proposed laws had been “tabled within the context of a revived securocrat state”, noting the secrecy around the Marikana mine massacre and use of public funds on Zuma’s homestead.

While the bill is now “greatly improved”, Mazibuko said, it remains “flawed” and “does not pass constitutional muster”. She has already begun lobbying the leaders of other political parties to refer it directly to the constitutional court for review.

Many accept the need to update the existing state information law, which dates back 30 years. But the ANC’s initial proposals drew withering condemnation from the opposition, civil society groups, trade unions, academics, journalists, writers including Nadine Gordimer, archbishop emeritus Desmond Tutu and friends of Nelson Mandela. Many argued that it is a crude attempt by the ANC to curb press freedom and mask rampant corruption in the state.

On Thursday, Mamphela Ramphele, a co-founder of the black consciousness movement and leader of the new Agang party, said: “I would like to see that bill tested and measured against the standards in our constitution. It should meet the standard of unobstructed access of all citizens to information and that there will be no punishment of people who reveal misdeeds. As we have seen, whistleblowers have been hammered and so people have stopped blowing the whistle.

“Without that sense of being protected by the law, protected by the constitution, people are going to be even more afraid and this bill is a very bad sign.”

Opposition across South Africa was generally more muted than for previous parliamentary votes, although the civil society group the Right2Know campaign staged a silent vigil in parliament in Cape Town and a picket outside the ANC headquarters in Johannesburg.

“We saw this moment coming years ago,” said its spokesman Murray Hunter. “It was meant to be an ugly bill that slipped quietly through the corridors of power but it turned into a national scandal.”

The bill has been described as the first piece of legislation since the end of racial apartheid 19 years ago to undermine South African democracy. Hunter added: “One of the greatest achievements of this country in its birth was the dismantling of the police state and a new dispensation with openness at the heart of democracy. The bill represents a pattern where these gains are slowly being eroded. Whistle-blowers were already being targeted before the legislation even passed.”

A vocal campaign against the bill did force the ANC to make significant concessions. In its original form, every government official would have had the power to classify information, Hunter said, but this has now been narrowed to a few individuals in the security cluster. “There is also a small measure of protection for journalists and whistle-blowers, but our legal advisers warn that it contains loopholes. At best, there is ambiguity over whether whistle-blowers are protected.”

More worrying still, according to Right2Know, the definition of “espionage” remains unclear. “There is a real fear that this bill can’t tell the difference between people publishing information for social justice reasons and those doing it for private gain or with malevolent intent.”

A person convicted of “espionage” could be sentenced to 25 years in prison, while holding or disclosing classified material carries a maximum of five years’ imprisonment. Hunter said: “It has been cynically observed that you don’t need to prosecute everyone, you only prosecute one person and the rest fall into line.”

If opposition MPs fail in their attempt to force the bill to the constitutional court, the Right2Know campaign and other groups are likely to bring an application through the courts, but this process could take years.

When the bill was first voted through by the national assembly in 2011, newspaper editors, wearing black, staged a walkout. There are fears that Thursday’s vote will deal a blow to South Africa’s robustly independent press, which has recently been asking awkward questions about the country’s military involvement in the Central African Republic.

Nic Dawes, editor of the Mail & Guardian newspaper and chairman of the South African National Editors’ Forum, said: “It’s important to say that the bill has improved significantly and genuinely. That is the result of the work done by a whole range of civil society organizations. It changed as a result of a very concerted piece of work and made freedom of expression and issue of broad national concern rather than one for think tanks and newsrooms.”

But Dawes shares concerns that the bill still has the potential to be used as an instrument of secrecy. “There is still too much scope for officials across the state system to classify information. The penalties are draconian. It might have a serious chilling effect on people who come across sensitive information and want to get it out there.”

The ANC has consistently rejected such criticisms. A statement from the office of its chief whip, Mathole Motshekga, said over five years there have been more than 100 meetings “which makes it probably one of the most consultative bills since the advent of democracy in 1994. Hundreds of amendments, over 800 of them, have been made on this bill – which makes it a complete redraft of what was originally tabled in parliament five years ago.”

The statement added: “We remain unshaken in our conviction that this bill will pass the constitutional muster.”