Statement of the “Protection of State Information Bill” (“Secrecy Bill”)

Southern African Catholic Bishops Conference

We regret that the “Protection of State Information Bill” was passed by the National Assembly yesterday. While improvements have been made to the Bill there are still flaws which are a cause for concern.

President Zuma has the power to refer the Bill to the Constitutional Court before he signs it into law. We call upon him to do so in order to avoid the risk of a prolonged and expensive court battle and the possibility of more parliamentary time being spent on amendments.

As a result of sustained pressure by civil society and opposition MPs, together with a receptive attitude from many ANC MPs who have dealt with the Bill in both Houses, there are improvements in the Bill which has been passed by Parliament. Even though we are unhappy with the latest version, its journey has been an object lesson in co-operation and engagement between civil society and parliament. We welcome the fact that:

•    a limited public defence has now been included on the basis of a revelation of any criminal activity;
•    the clause empowering the Bill to override the “Promotion of Access to Information Act” has been dropped;
•    in this version it is more difficult for minor State functionaries and departments to classify information as secret. A fairly strict process must now be followed and municipalities are no longer allowed to apply for such permission.

Nonetheless, this remains an unsatisfactory piece of legislation, for the following reasons:

•    It lacks a full public interest defence and will thus make the fight against corruption more difficult. To fight corruption we need more openness not more secrecy;
•    The Bill allows for the decision to classify information to be delegated to a staff member of a sufficiently senior level without indicating what such level may be. This risks a situation in which classification decisions are taken by fairly low-ranked officials.
•    The definition of “national security” is still too wide.
•    The penalty clauses provide that severe punishment (up to 25 years in prison) can be imposed if someone discloses a secret which the person “knows or ought reasonably to have known” would benefit a foreign state. This, in effect, creates an excessive penalty for a possible negligence crime.

On the eve of the celebration of Freedom Day there is an opportunity for President Zuma to subject this Bill to the Constitutional Court for further deliberation and so to protect the democracy which we all cherish.

Archbishop Stephen Brislin
Southern African Catholic Bishops’ Conference
26th April 2013