Visiting Professor Wim Trengrove argued that the Protection of State Information Bill is open to abuse because it fails to tightly define and control what may be classified as secret information.
Prof Trengrove was speaking at a lecture organised by the Rhodes University Law Faculty this week. He focused his discussion on the Nkandla papers as a case study to demonstrate the flaws in the drafting of what has come to be known as the Secrecy Bill.
“Bureaucrats are hardwired to keep secrets,” he said. “One should always proceed from the premise that legislation which is capable of abuse will be abused.”
Prof Trengrove argued that while the South African Constitution does allow for the protection of state information, the fact that openness, transparency, and accountability are founding principles means this is limited.
“Restrictions may be imposed, but it is vitally important that any restrictions which are imposed be tightly controlled and tightly defined,” he said.
This is where he believes what has come to be known as the Secrecy Bill falls short. He largely puts the problem down to the Bill been drafted by amateurs, even though he assumes in their favour, that the drafting was done in good faith.
According to Prof Trengrove the consequences of this poor drafting are very serious. Errors relate particularly to the criteria set out for classifying information.
“I believe it will very often be impossible for an honest person sensibly to apply the classification criteria,” he said. He added that if it is even difficult for honest officials to navigate the criteria, then those who wish to abuse its murkiness will have plenty of space to do so.
According to Prof Trengrove, the classification criteria could be called “Potjiekos Criteria” because they provide a mixture from which one could make almost anything. The Bill, which has been passed by Parliament and merely awaits the President’s signature to become law, states that information can only be classified if it is necessary for “national security”, but what this means has been left extremely open.
Furthermore, while noting that in making classifications, a balance needs to be struck between the right of access to information and the need to protect certain information, the Bill provides no guidelines for how balancing should be done and where the lines should be drawn.
What is particularly problematic, given the above, is that the Bill does not provide a procedure by which classification can be tested. At the same time, it imposes harsh sanctions on anyone who possesses or publishes classified information.
Journalists, for example, who come to possess classified documents that they believe may have been incorrectly classified will need to choose between destroying the documents or taking the risk of publishing while unsure if they can prove the classification unjustified. The risk is one Prof Trengrove believes, few will be willing to take.
“The overwhelming impact of the legislation would be to have a very chilling effect on the media,” he said. “And the losers at the end of the day are not the newspapers, but the public because we will never know.”
Photo and story by Kyla Hazell