Constitutional Court looms for ultimate Secrecy Bill battle

"Presumption towards openness"

"The citizen's right to access is entrenched in the Bill of Rights and the Promotion of Access to Information Act creates a presumption toward openness in all matters. The [Secrecy] Bill says the opposite," Right2Know campaign committee member Gabriella Razzano argued at a Gauteng branch meeting of the Right2Know campaign in Newtown, Johannesburg, yesterday, Wednesday, 8 December 2010.

Minister of security Siyabonga Cwele, who has emerged as the Secrecy Bill maestro, has been leading the campaign to classify all documents deemed vital for the security of the state.

"A further significant problem has been the failure to create an independent overseer, and all appeals in regards to classification have therefore been decided by persons within Cwele's department itself," Razzano said.

"In fact, the minister of state security, who is essentially tasked by secrecy, becomes the main arbiter of the bill in its entirety."

Introduce uncertainty again

Minority parties have significantly campaigned for the removal of the definitions of "national interest" and "commercial information". This then paves the way to classify only information subject to "national security". However, major problems still remain with the inclusion of "acts of violence" and "information peddling", whose definition Razzano says bear little description and introduce uncertainty again.

Razzano, of the South African History and Archives, said: "There still appears to be haste in relation to the bill that is not giving us ample enough time to consider whether the attempts to incorporate whistleblower protection works adequately.

"Furthermore, concerns remain that while the inclusion appears to protect from criminal prosecution those who legitimately - in terms of the Protected Disclosure law - release or hold such information, it still prevents publication of such material even if it is in the public interest. This is a pertinent worry remaining for the group before us.

"Personally I find the government's reticence to merely include a generalised public interest defence a grave concern. On a related note, they are also resisting merely generally making sure that those who are particularly responsible for classifying are the only ones who are penalised. The criminal offences are in no way limited to personnel alone."

Sentenced to 25 years

If this bill is enacted in its current form, any journalist who publishes any so-called classified information will be detained, tried and sentenced to 25 years - an unjustified and harsh punishment critics say will put democratic South Africa at the same level with totalitarian countries such as North Korea, Cuba, Myanmar, China, Zimbabwe, DRC, Cameroon, Congo-Brazzaville, Angola, Eritrea and Egypt, among others.

The abovementioned countries are said to be listed among the worst countries in the world in terms of free access to information, media freedom and freedom of expression, political tolerance and transparency.

Razzano also slammed the government for showing unwillingness to limit the task of classification to core state bodies in the security sector such as police, defence and intelligence agencies. "This reflects to me a desire to extend secrecy beyond boundaries that would make it otherwise justifiable."

If the government does not budge next year, the Constitutional Court is set to be the venue for the ultimate battle.

Alea acta est!