The members of the International Press Institute (IPI), meeting at their 60th Annual General Assembly during the IPI World Congress on 26 September 2011 in Taipei, Taiwan, adopted by unanimous vote a resolution expressing concern that the South African government has stated its determination to proceed with the highly-contentious Protection of State Information bill, dubbed the ‘Secrecy Bill’ by some of the many protesters in South Africa.
The statement came on the heels of a separate announcement – made on the eve of the Bill’s initially-scheduled passage through parliament – that it was being temporarily withdrawn, to allow for further representations to be heard.
The IPI members further resolved that the government should scrap the Bill altogether.
The Bill provides for the classification of information which the State deems should be kept secret but has been vigorously opposed by journalists, the SA National Editors’ Forum, lawyers, civil society organisations as well as international media organisations, including the International Press Institute.
IPI believes that the Bill was seriously flawed initially, and despite amendments and improvements that have been made during hearings by a parliamentary committee it still contains provisions which will severely restrict the gathering and publication by the media of public interest information. It continues to hold the threat of long terms of imprisonment over journalists and citizens.
One of the most serious defects in the draft legislation is the absence of a public interest defence for journalists and citizens who wish to publish certain classified information on the grounds that the public interest justifies such conduct. They cite information that is classified to shield perpetrators of corruption, misgovernance or abuse of authority.
IPI, in common with many critics in South Africa, believes that the Bill should be withdrawn and a fresh approach made to this contentious subject. IPI accepts that all governments have the right to maintain secrecy about information concerning national security issues or information dealing with their relations with other governments. But IPI maintains that classification calls for the narrowest of definitions of subject matter which should be strictly limited. A guide on this subject which appears to have been glossed over by the SA government is the Johannesburg Principles that were drawn up in 1996 by local and international civil rights lawyers and civil society organisations, among them IPI, to define the classification of state information.
Apart from a lack of a public interest defence mechanism, the other objectionable features that remain following the revisions of the Bill are:
• The retention of harsh prison sentences and no indication whether a judge may impose a fine as an alternative;
• Uncertainty about the ambit of the regulations to be drawn up by the Minister of Intelligence within a year of the Bill’s enactment relating to the subject matter for classification and how this would be done. The revisions resulted in the excessive powers of classification given to the minister in the original Bill being withdrawn but the regulations that the minister will enact contain no limiting guidelines to ensure that he/she does not revert to the restoration of those wide powers:
• Judicial officers being given extensive powers to exclude public and press from courts when classified information is involved in cases;
• Lack of clarity over the powers to classify information given to state institutions other than those dealing with national security; and
• The omission of a requirement that written reasons be provided by officials classifying information so that these may be reviewed by senior authority.
IPI notes with approval the strong objections to the Bill recorded by International Pen at its 77th annual World Congress in Belgrade, Serbia, from September 12 to 18. International PEN expressed its concerns over the effects of the Bill on editors, writers and authors. It stated that the Bill still embraced too much “secrecy’’ despite change.
