The Institute for Accountability in Southern Africa

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The Secrecy Bill - "How would you like your secrecy steak done?"

The Protection of State Information Bill has been passed by the National Assembly and is now under consideration by the National Council of Provinces, which has wisely decided to appoint an ad hoc committee to do justice to the task at hand.

If one regards the bill as a steak, then it would be fair to suggest that this piece of legislation is horribly overdone, if not charred to a cinder and indigestible to the constitutions of most normal democracies in the world.

The bill may find objectors putting it to the test of its compliance with the Constitution which has a set of values and relevant guaranteed rights for all. The values of openness, accountability and responsiveness to the needs of ordinary people will all be invoked should the bill come before the courts. The rights in the Bill of Rights that are likely to be invoked by civil society organizations opposed to the bill include: These rights are all limited in various ways by the content of the secrecy bill. Whilst it is obviously true that when it comes to matters of national security, there is no country in the world that does not have legitimate and protectable secrets that ought to remain so, using this self-evident fact to make secrets of matters that ought not properly to be kept out of the public eye is not permissible in an order in which transparency and openness are foundational values of the Constitution. Along with accountability and responsiveness these are explicit requirements of a foundational nature in the SA constitutional order of today.

The rule of law itself is set against notions of secrecy, mainly because the substantive notions of fundamental fairness would suggest that secrecy in the conduct of the affairs of state should be kept to the minimum and restricted to matters that are truly of "national security" nature. National security should obviously not be confused with the job security of politicians and public servants, especially those who seek to invoke secrecy provisions to cover up their own wrongdoing and that of others.

Naturally, the rights in the Bill of Rights that are guaranteed to all in SA are not necessarily of an unlimited nature. Limitations of general application of the kind that are acceptable in an open and democratic multi-party order can be introduced in a bill such as our over-cooked secrecy bill, but to pass constitutional muster they have to be reasonable and justifiable. This will be the terrain of struggle in the arguments presented, eventually, to the Constitutional Court which has the final and binding say as to whether to accept the bill in full or to strike down whatever aspects of it are found to be inconsistent with the Constitution.

The promotion of national security through keeping classified all matters that are properly so classified is a way of working towards that better life for all that is a national goal. The use of secrecy legislation to hide the wrongdoing of those in authority is clearly not of advantage to anyone other than the skelms involved.

While the absence of a "public interest defence" has been the subject of much debate, it is relevant in the constitutional context only to the extent that the right to a fair trial of an honest whistleblower who gives a journalist documents to publish which are classified and which they both mistakenly believe to contain evidence of wrongdoing, may be the only aspect of this defence that will interest the court testing the validity of the law.

It might be better to ditch the charred steak and start a new braai.

Paul Hoffman SC
28th November, 2011

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