What the secrecy Bill should look like

The Protection of Information Bill is an aberration that threatens to eliminate government transparency, cut off the free flow of information and cripple the media’s effectiveness in exposing corruption at the highest levels.

Accordingly we need to ask ourselves what can be done to achieve the goals that the legislators purportedly had in proposing the Bill without allowing the legislation to be used for more sinister purposes under the guise of national security.

If regard is had to the Bill itself the stated intention would appear to be creating a balance between the free flow of information and transparency on the one hand while ensuring that national security is protected on the other.

In order to achieve this those who have proposed, drafted and sat on the parliamentary committee to debate the Bill must be disqualified from any involvement in the process and be replaced with independent senior counsel chosen by the Constitutional Court who are mandated to draft the necessary legislation.

The Bill on the table, as far as I am concerned, totally eliminates the credibility of those who have dealt with the subject matter up to now.

Our senior counsel are among our finest legal academics and will take government at its word ie that South Africa needs a modern Protection of Information Bill. This they will ensure without allowing all the convenient collateral benefits for corruption and ineptitude that the current Bill provides. They will also be people who are acutely aware of the Constitution and not lightly remove any freedoms from the people of our country.

In terms of the actual Bill there must be a very narrow definition of “national security” that sets out in detail exactly which areas need protection. This relates to the military, intelligence and to a degree the police. In the case of the latter however the definition of what constitutes a matter of national security for the police must be strictly limited.

In addition an INDEPENDENT body, chosen by anybody but the politicians and approved by the courts, must sit permanently and vet each document before it is classified. In the interim this body can be expanded to assist in checking the existing database and proposed documents for classification.

Where this independent body has confirmed a document must be classified as secret then it can attract severe penalties if found in anyone’s possession.

The above would then cover those interests where genuine concerns regarding national security actually come into play. The heads of organs of state would have to go past that independent body to classify those documents they wish to stamp.

In terms of declassification the public could then apply to the independent body ie parties who have nothing to gain if they wish to declassify documents. Again the people from state departments can justify to this body why they should not be released and the decision left to the independent body. Time limits in these cases restricted to seven days failing which the independent body can make a ruling.

In respect of commercial information a separate and independent panel made up of legal and accounting experts must decide before any document can be classified in the interest of national security. The law currently provides for damages in the case of unlawful behaviour in commercial transactions — including criminal sanctions — which means that those who suggest a document requires classification need to put it before people who understand exactly what the party is trying to achieve.

This will mean parties having to justify why commercial documents should be classified and attract these harsh sanctions.

The penalties under the new system would then be justified because it is not state and government doing the classification and declassification of documents, then being checked by a panel chosen by the team that sacked Pikoli and disbanded the Scorpions but rather an independent body approved by the courts.

But just in case the tenderpreneurs manage to start bribing panellists a public interest defence is inserted which ensures that if the documents are proven to have been proposed for or classified as secret, while the primary benefit was to conceal crime, then the parties involved attract a minimum sentence of 20 years. A member of a panel being given 25 years for betraying the public’s trust while in a vital position.

The parties who exposed the crime are immediately cleared of any crime and indemnified against prosecution.

The beauty of all this is that senior counsel will know exactly what kind of national security threat South Africa faces — as opposed to the Bill which appears to have been based upon the one Stalin went for just before Hitler invaded — and the independent body would be classifying the documents not the potential problem children.

Using this system South Africa would get its national security protection — based upon logic — and the people would retain their freedoms. Those that don’t and are convicted, will deserve it because they genuinely tampered with national security.