South Africa: To be Secret or Not to be Secret, That is the Question
blurb:isstoday:17042008secret
17 April 2008: South Africa: To be Secret or Not to be Secret, That is the Question
The Protection of Information Bill recently released in South Africa for public comment has sparked a wide range of criticism and speculation. This is primarily based on the fear that the national intelligence structures are trying to curtail access to information, as the Bill will criminalise the use of secret information to cause disrepute or harm to the state. Furthermore, concerns have been raised about the declassification of apartheid era documents and the possible instability that this could cause.
Democratic governance of the intelligence sector is all about compromise. How much secrecy can be compromised in the interests of openness and transparency? How much openness and transparency can be granted before national security is compromised? These are the issues to grapple with.
Some call it creating a balance between secrecy and transparency. The position of the intelligence services is to keep secret and secure information that if fallen into the wrong hands would be detrimental to the interests of the state and its people. This needs to be done while also ensuring that not all information is kept secret and to avoid the creation of a bureaucratic obsession with secrecy where all state information is classified and controlled.
Not only is an obsession with secrecy undemocratic, it is also practically and organisationally inefficient to classify and then have to secure and control information that, if open, does not present a real threat to the security of the state and its people.
Creating a system for the classification and declassification of state information has been a challenge for South Africa since the end of the apartheid era - an era characterised by excessive secrecy and centralised decision-making in the intelligence sector.
The system of protection of information as defined in the proposed legislation is an attempt to create an environment in which not all information is classified and that which is classified is secured.
One of the aspects of the protection of information that is often over-looked is that these procedures do not only apply to the state security and intelligence services but to all departments of the state. The intelligence services, particularly the National Intelligence Agency, are responsible for the protection of state information as part of the counter-terrorism and counter-espionage mandate of the agency. As such, this Bill serves to ensure that personal information kept at the Department for Home Affairs for example, is protected and the leaking of personal information becomes a criminal offence.
In light of the recent spate of attacks on people exiting OR Tambo International Airport where incoming passengers were required to fill in customs forms detailing personal addresses and the amount of currency being carried, is it not a good thing to know that the state is trying to ensure that such information is secure and cannot be used to facilitate crime?
The bottom line is that in playing an active role in our democracy, we should be wary of attempts by the state to regulate access to information and we should interrogate with enthusiasm the processes and procedures that are proposed in order to do this.
The other side of the matter, however, is that not all attempts by the state to regulate access to state information are attempts to curtail legitimate media and research access to information. Part of the problem with the way the Protection of Information Bill has been received by the media and the public more generally is that is has been proposed by the Ministry for Intelligence Services. Given the historical legacy of oppression, control and manipulation by the intelligence sector in South Africa, a certain amount of opposition was to be expected.
Writing in SA Today on the Democratic Alliance (DA) website, DA leader Helen Zille called the ruling party the enemy of open society and quoted the Protection of Information Bill as an example of attempts by the ANC to curtail space for public debate and interrogation of the state. She called the Bill a sinister proposal and pointed to the clause that criminalises the possession and publication of sensitive information with the intention to prejudice the state. The Mail & Guardian newspaper has also been critical of the Bill explaining that if this legislation had been in place at the time, the newspaper’s exposés on the National Commissioner of Police, Jackie Selebi, would have been illegal.
Curtailing access to regulated state information is necessary to criminalise espionage and to protect national interests as defined in the Bill. One of the purposes of the Bill is to ensure that not all information is classified and given the proposed classification system the information published by the Mail & Guardian might not even have met the new classification criteria.
The Bill clearly states that classification is an exceptional measure and should be used sparingly. Under the proposed classification framework, classification of information may not be used to conceal an unlawful act, incompetence or inefficiency; to restrict access to information in order to limit scrutiny and avoid criticism; or to prevent embarrassment to a person, organisation or organ of state. Furthermore, when information is classified, a written justification has to be provided to qualify the classification.
Although the concerns of the media and opposition parties are legitimate and should be considered, there are enough clauses in the Bill, which highlight that classification should be the exception and not the rule. By making the criteria for classification more stringent and clearly stating that information may not be classified to hide abuse or misuse of state position and resources, the Bill actually overcomes some of the fears and criticisms, which have been levelled at it.
Accessing classified information without the necessary authority is and should be illegal. This is to protect the citizens and the state. The real questions should be what kind of information should be secret and what should be public. This Bill is an attempt at defining the scope of secrecy necessary. There is no doubt that it is a compromise position as the media and researchers might need to compromise and admit that in this day and age certain information needs to be protected. So to does the state need to compromise and ensure that the legacy of excessive secrecy is over and that in keeping with the spirit and intention of the proposed legislation, more information is made public and that classification can no longer be used to hide incompetence, inefficiency, abuse or to avoid criticism.
Lauren Hutton, Researcher, Security Sector Governance Programme, ISS Tshwane (Pretoria)
