“The bill has been very poorly drafted. The consequences are very serious.” That is how advocate Wim Trengove, one of South Africa’s most astute legal experts, expressed his fears about the future of openness and accountability in South African law at the public lecture hosted by Rhodes University’s Faculty of Law last Tuesday.
“The bill has been very poorly drafted. The consequences are very serious.” That is how advocate Wim Trengove, one of South Africa’s most astute legal experts, expressed his fears about the future of openness and accountability in South African law at the public lecture hosted by Rhodes University’s Faculty of Law last Tuesday.
Trengove, who was involved in the ‘Zuma rape case’, focused on the weaknesses of the Protection of State Information Act, better known as the ‘Secrecy Act.’
he Act now sits on the president’s desk awaiting his signature, which will make the law enforceable. Many legal experts are convinced that the Bill does not meet constitutional standards.
“Any restrictions [to constitutional rights]must be tightly defined and tightly controlled,” said Trengove.
Trengove used the Nkandla papers as a case study for the misuse of the Protection of State Information Act. The Nkandla Resort, the private residence of President Jacob Zuma, was due for a security upgrade in 2009. The cost estimate was a modest R88 million.
The Minister of Public Works has however admitted that as of June 2013, the Nkandla project has topped R210 million. A report by the Public Works Ministry on this débâcle was classified as ‘Top Secret.’
Indeed, the “Secrecy Act” permits the state to classify information into three categories: Classified, Secret or Top Secret. According to Section 8, “Classification of state information is justifiable only when it is necessary to protect national security”. Trengove argued that the definition of “national security” is too wide and could “mean anything”.
Further, the Act stipulates that “state information is classified only when there is a clear, justifiable and legitimate need to do so; and a demonstrable need to protect the state information in the interest of national security.”
Those found guilty of unlawfully classifying information, can be sentenced to between five and 15 years in prison.
One of Trengove’s main concerns is that simply possessing such information risks an unlimited fine or up to twenty years imprisonment. Even if a stranger gives a journalist documents marked ‘top secret’ the journalist will be held accountable – whether they perused that information or not.
He said that although there had been several improvements since the first draft, the Act still had “murky classification criteria” and did not ensure the safety of people who object to the ‘secrecy’ of a document. He added that it would be difficult to prove that a classification is wrong since there are no procedures to help journalists or ordinary citizens object to a classification.
“Almost anything can be classified secret according to the classification criteria,” he said. The burning question: what if a journalist believes Top Secret information is wrongly classified and that revealing it is in the public interest? Trengove said the journalist is then left with two extreme choices.
Either destroy the documents and avoid conviction. Or publish it and face criminal prosecution. “The losers at the end of the day will not be the newspapers, but the public – because they will never know,” said Trengove.
Another flaw Trengove highlighted, is that the Act was drafted by a large committee of politicians who, according to the advocate, should have consulted more legal experts. He added that the drafters acted in good faith, but were “amateurs” in the field of law making.
The Act allows ministers to delegate power to national, provincial and public body’s – including company’s like Armscor, Transnet and Eskom – to classify information.
The power vests in the head of the body but can be delegated to almost anyone in that state entity. Municipalities are the only entities that do not possess the power to classify information. Where there is doubt about a classification, cases must be referred to the Minister of State Security.
“It does seem to make sure that the minister has the final word.” Trengove seems convinced that if signed by President Zuma the bill will fail a constitutional validity test.
The question the 11 Constitutional Court judges will have to answer is whether the state’s need to withhold certain strategic information trumps our constitutionally enshrined rights to freedom of expression and access to information; and how.
At the end of the lecture an audience member urged Trengove to invite President Zuma for dinner to personally explain the consequences of the Act. The advocate grinned and said that his last appearance with Zuma was when he was prosecuting him on charges of rape, “although there was light conversation in the men’s room”.
