Michael Trapido
Michael Trapido

Secrecy Bill good in theory, police state in practice

The Protection of State Information Bill will be tabled in the National Assembly on Wednesday where it may be referred to a parliamentary ad hoc committee or passed and sent to the National Council of Provinces for deliberations.

This does not mean that it cannot be amended or modified before being sent to President Jacob Zuma for signature but does seem to indicate that despite assurances by the ANC that national consultation would be the order of the day, those who would see it implemented are putting pressure on government to give it direction and fast.

Just under two months ago the so-called secrecy Bill was suddenly withdrawn from the parliamentary process in order to allow for further consultation.

Subsequently Deputy President Kgalema Motlanthe indicated that there could be a “meeting point” over the insertion of a public interest defence which has been one of the main sticking points, gave the assurance that the ANC would not use its superior numbers to “ram through” legislation not aligned to the constitution and confirmed that it was not the intention of the government to try to muzzle the media.

While all of this may seem to be our democratic system in operation in reality it is anything but.

Over the past year or so I have repeatedly tried to show why, despite the legislation appearing to refer to the constitution and purporting to accommodate its principles and terms, in reality it would — due to the actual mechanics of the bill within our legal system — result in draconian measures being available to the state, police and intelligence services who could effectively silence the media permanently.

This is the reality of the Bill as opposed to the theory of it.

If you click on the link above you will see how the secrecy Bill will operate in practice and regardless of whether there is a public interest defence or not perpetrators of corruption will be able to tie up documents and “offenders”, who are in possession of them, which have nothing to do with national security, for years.

The public interest defence only comes into play if someone from within the system decides to expose the corruption and even then will require the media being prepared to risk exposure to the serious charges and draconian sentences which arise out of dealing with documents which have been classified.

Declassifying documents in terms of the proposed system makes for a long and arduous process trying to convince the real offenders to turn over the papers proving their crimes — good luck with that. Even the appeal process keeps it in the same department where a minister — who may be involved — has to overturn a decision where corruption or ineptitude in his own portfolio may be exposed.

What certain of the legal theorists and academics fail to see is that in truth, on the ground, before a court or however else I can drive home the reality of the day-to-day working of the Bill, lawyers representing the media will have extremely limited means of forcing documents to be declassified while the police and state will have immensely powerful weapons at their disposal.

An example — a whistleblower hands classified documents to a newspaper. The Bill provides that anyone who has classified information in their possession without authority and retains or publishes it or gives that information to another party then the parties concerned face imprisonment of not less than five years.

For the purposes hereof the public interest defence exists.

The police then arrest both the journalist and whistleblower — the charge exists, the defence is what the accused will use at their trial but will not prevent arrest and possible denial of bail. In this regard don’t forget that the accused are being charged with breaching national security so the question of being denied bail must be seen in that light.

This means that in order to run a story a journalist could be facing long term imprisonment before he or she even gets to trial.

That is the day-to-day reality and all the theory in the world will not detract from the fact that our prosecutors, police and presiding officers will be called upon to apply the law of the land. In this case to arrest the “perpetrators” and keep South Africa safe from breaches of national security — which just happens to protect thieves from having their corruption exposed.

It is vital to this constitutional democracy that senior counsel, who are trial lawyers, represent both the media and public at these negotiations.

They will be able to outline exactly what this Bill would mean on the ground and put a stop to welcoming the current overtures being made by government, which is currently the order of the day, and seek legislation which deals with national security and leaves the media out of it.

Punish anyone — including media members — over real issues of national security rather than as a side issue of what seems to be an attempt to cover up ineptitude and corruption.

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