COSATU addresses SANEF, R2K on infamous bill

Address

COSATU's engagement with processes around this bill is well documented, beginning with our submission on the original bill to parliament in June 2010. It was because of our political intervention earlier this year, that the passage of the bill through parliament was slowed down to accommodate numerous amendments, which represent a vast (albeit insufficient) improvement over the original bill.

Most recently, our Central Executive Committee of 21-23 November 2011 unequivocally reaffirmed our opposition to the bill in its current form and further indicated that we would pursue a Constitutional court challenge should the fundamental substantive problems not be addressed.

The values that inform our position

On the whole our stance on the bill is informed by the need to ensure the advancement of the following two broad principles, which in our view are not mutually exclusive:

1. The promotion of openness, transparency and accountability within our institutions of governance at all levels; and
2. The protection of the complementary objectives of public interest and an appropriately constructed definition of 'national security'.

Our views here cannot be separated from our previous involvement and engagements in such processes as the 'Promotion of Access to Information Act' (PAIA); the Protected Disclosures Act (PDA), and even in relation to the Constitution of our country. In this respect, we have maintained concrete and ongoing partnerships with other civil society organisations to advance our shared objectives, many of whom are part of the Right2Know Campaign.

We have also consistently maintained pressure on the need to step up on our fight against escalating corruption in both the public and private sectors. In this respect COSATU is in the process of facilitating the establishment of a Corruption Watch institute, which will operate independently of COSATU and our internal structures.

This must be viewed against COSATU's background as a revolutionary trade union movement and where it has always located itself even before 1994, as informed along with our allies by our historical values. Here we must pause to note articles of 6 and 8 of the Freedom Charter, which respectively provide:

• 'The law shall guarantee to all their right to speak, to organise, to meet together, to publish, to preach, to worship and to educate their children,' and
• 'All the cultural treasures of mankind shall be open to all, by free exchange of books, ideas and contact with other lands.'

These provisions laid down the initial foundations for corresponding rights in our Constitution. However, as it did so at a time when the majority in our country were denied access to even their most basic rights, and these could be described as being merely aspirational. Whereas now the Bill of Rights sets out detailed provisions on freedom of expression and access to information and in particular states:

• 16(1) Everyone has the right to freedom of expression, which includes-
  a) freedom of the press and other media;
  b) freedom to receive or impart information or ideas

And

• 32(1) Everyone has the right of access to-
  a) any information held by the state; and
  b) any information that is held by another person and that is required for the exercise or protection of any rights.

We acknowledge that there are aspects of the Constitution that reflect the inherent problems associated with the negotiated settlement, such as the property clause.

However, we are clear that the rights to freedom of expression and access to information are not part of these and instead reflect a major victory over and departure from our repressive past. These are the core values of the ANC and the democratic movement as a whole. They were not part of the 'fatal concessions' as one of the leaders of the ANC, who is also a Deputy Minister of Correctional Services put it.

Overall questions that must be answered

COSATU agrees that it is untenable that the apartheid security legislation, in the form of the 1982 Protection of Information Act, remains on our statute books. At the same time we accept that an appropriate piece of legislation would have to replace it in order to protect those secrets that are legitimately withheld from the public and only because this is genuinely in the public interest.

Further, we are of the view that security legislation should only be used where it is strictly necessary. We agree that all states have secrets but these secrets relate to the protection of the citizens and the state from hostile internal and external activities. Our defensive capabilities to protect our state and its citizens are our inalienable right that flows from international law. We do need legislation to protect the state secrets that flow from the responsibility of the state to its citizens.

The bill in question however is not limited to this agreed to responsibility as we will demonstrate in this address.

It would be important to first identify a few broad critical questions against which substantive concerns with the bill should be tested:

1. Is there a genuine and justifiable public interest that may ONLY be served by placing restrictions on how relevant information may be accessed or handled?
2. If the answer is 'yes', then can it only be served through security legislation, noting the severity of its associated consequences? Or would restrictions imposed through other forms of non-security related legislation and/or contractual measures not suffice?
3. Where we accept that the application of security legislation is inevitable, what safeguards can be implemented to ensure that:
   • a) The objectives of transparent and accountable governance are not compromised, and
   • b) That there is adequate protection of associated rights to information and freedom of expression as well as for whistle blowers who expose corruption and irregularities?

Our substantive concerns

While the current version of the bill has significantly improved from what was tabled originally in Parliament 2010, it retains many of the original problems.

• Ministerial Discretion - in our view, the scope of the bill remains excessively wide. This is despite the revised bill under clause 3(2) reducing the automatic application from all organs of state to only the security services, since the State Security Minister has discretion to extend this to just about any organ of state on 'good cause shown'.

  Here it would be relevant to ask the questions we posed earlier; namely, what justifiable public interest would be served by placing restrictions on the processing of any information; and if it can be justified, why should this be implemented through security legislation and not ordinary law. This would necessarily have different practical implications depending on the sector within which an organ of state is located. Moreover, surely genuine threats to national security arising from the compromised control of information do not arise equally from all sections of the public sector. Why then is there a blanket provision to enable the inclusion of all organs of state that would even encompass state-owned entities.

• National Key Points - the scope and reach of the bill is further amplified by the inclusion of 'national key points' in the definition of an 'organ of state'. Under the 1980 National Key Points Act (which is yet another relic of the apartheid security legislative machinery) this includes even privately owned entities. It is difficult to obtain a full list or even an indication as to the number of entities that have been declared national key points, as the information is held (or more correctly withheld from public and civil society scrutiny) by the Minister and the state security machinery. What we do know is that it entails some diverse entities such as oil refineries and the airports.
• Degrees of Harm - Under clause 12 of the bill, relevant information held by an organ of state or national key point may be classified as either 'confidential', 'secret' or 'top secret' depending on whether its disclosure is likely or could reasonably be expected to cause 'harm', 'serious harm' or 'serious or irreparable harm' to national security. These reflect the stringency of the classification, which in turn determines the level or restriction and applicable criminal penalty.

  We are of the view that there is still room for subjectivity in the interpretation of the level of harm in each case, which is not adequately restricted by the requirement that the harm in each case must be 'demonstrable'.

• Definition of 'National Security'- in addition to the potential problems that may creep in during the classification process, is the lack of an appropriately constructed definition of 'national security' under clause 1. A key concern is that it includes such problematic criteria as the 'exposure of economic, scientific or technological secrets vital to the Republic' as well as 'responsibilities to any foreign country and international obligations'.

  Our concern here would be illustrated by considering the fact that should there be publication of the terms of the World Bank loan to Eskom or alternatively the terms applicable to a loan made by South Africa to a foreign country, this would inherently violate South Africa's obligations respectively to a multilateral institution or a foreign country. In so doing, this would be deemed to have compromised the national interest despite the compelling public interest to make transparent the usage of public resources.

• Access to and possession of information - the scope of the bill combined with the classification of relevant state information place immediate restrictions on the access to information for affected parties and even the public. The only way to override this is by applying for a review of the classification to the head of that organ of state that has classified it. Appeals against the decision would lie to the specific Minister responsible for that organ of state. Thereafter appeals would have to be undertaken through expensive court processes, which are likely to span many years. There is no accessible and independent review mechanism for the ordinary people and workers.

  Further, we note that clause 1(4) states that when accessing classified information, the bill would trump any other Act of Parliament should there be a conflict. In addition to PAIA, other pieces of legislation enforce rights of access to information. In particular, the Labour Relations Act provides representative unions with the right to demand access to information in the course of collective bargaining. We have concerns here about the potential for this to be affected if it is deemed to affect classified information.

• On whistle blowing - the bill criminalises possession of classified information by an unauthorised person under clauses 15 and 44. Then in terms of clause 14 it also states that any person who 'conspires with ...aids, abets, induces or counsels another person to commit an offence is guilty of an offence'.

  This would have the consequence of criminalising the obligations that trade union officials and advice offices have to assist whistle blowers with advice or blow the whistle on their behalf where a person wishes to remain anonymous. With the increasing risks associated with blowing the whistle, this support may be the only way to incentives the exposure of corruption or other irregular activities.

  We disagree with the contentions that the bill has been 'aligned' with whistle blower protections under the Protected Disclosures Act (PDA) and Companies Act. To the contrary, our assessment is that this affords little meaningful protection from the dampening effect that the bill will have on encouraging the exposure of corruption for the following reasons:

  • i. Currently the PDA provides protection to employees only and therefore excludes other individuals such as independent contractors and suppliers or recipients of services. It is precisely because of this that COSATU has argued that this Act should be amended as its coverage broadened. The Companies Act would apply to state-owned companies but not government departments. This means that entire categories of whistle blowers would be without protection.
  • ii. Further neither of these Acts deals with information that has been classified and would not render protection for a disclosure if the access and possession of the information was not authorised in the first place. Criminal penalties would be applicable regardless of the seriousness of the irregularity that is exposed by an unauthorised disclosure.

  • iii. The bill allows for the absolute exclusion of any whistle blower protection for the disclosure of information classified as a state security matter by intelligence and security agencies.

  Further while we are unequivocally opposed to the protection or promotion of acts of espionage or similar activities that are hostile to the state, we are concerned that relevant provisions in the bill are capable of such broad interpretation that it would have the effect of imposing criminal responsibility against individuals who disclose information in the public interest and for which ordinarily crimes of such a nature should not be applicable. For example, section 38(1)(a) states that it is an offence to 'make available' top secret information that would prejudice national security, which we believe could easily be used to constrain legitimate whistle blowing.

• Protection of the media - COSATU remains critical of the chronic problems of bias, lack of balanced reporting and diversity in the mainstream commercial media. We have bemoaned the concentration of ownership if the media in our country, which means there are inadequate levels of diversity and plurality, that is so essential to media freedom. However, in our view in the absence of other viable alternatives it remains one of the broadest forms of disseminating and implementing rights of access to information for the masses. In our view, public awareness is integral to holding state institutions accountable and acts as a check against irregularities.

  Further state censorship and persecution of journalists and media would only exacerbate the problems of inaccuracy and bias. In our view, it is necessary to facilitate and enhance reporting and investigative journalism in the public interest.

  However, as the bill places extensive restrictions on access, possession and disclosure of classified information it would necessarily severely curtail this objective.

• On the public interest defence - everything we have said up to now illustrates that there remains substantial technical amendments to be undertaken. In addition we have always been clear that there we accept the need for an appropriate version of security legislation. This necessarily means accepting that some restrictions would be placed on the processing of classified information. However, in addition to effecting the necessary technical amendments, there is a need for a safeguard that would act as a counter-balance to legitimate restrictions where the public interest warrants this. On this basis, we maintain our support for the introduction of a public interest defence, which would be available especially for whistle blowers and the media.

  We do not believe that there would be much scope for abuse since the defence would not be available should a person not be able to demonstrate that there was valid public interest to protect or promote.

Conclusion

Since the inception of this process COSATU has been consistent in our approach to the bill, always maintaining the need to promote transparent and accountable governance alongside the protection of complementary rights to access to information and freedom of expression. We do not believe that civil society has any other choice but to do all that is possible to ensure the protection of the interests of the working class and public at large, who would be the most adversely affected by problematic provisions in the bill, and who would not have the time or resources to assert their rights. At the same time, we cannot ignore the impact that rampant corruption has had on constraining key priority areas of service delivery.

Notwithstanding the apparent gaps in the existing security legislative framework being cited as the motivation for the haste in channelling the bill through the Parliament, practical experience has not actually borne out the arguments that our country is facing such imminent threats of mass exposure of state secrets that would compromise our national security. To the contrary, what has tended to be exposed has been largely orientated towards acts of corruption, including grand corruption. Here the only conclusion that can be supported is that disclosure and media publication in each instance was justifiably and legitimately in the public interest.