Dispatch from South Africa: What’s Wrong with the Secrecy Bill?
As we reported here previously, in 2011 PEN American Center joined South African PEN to fight a troublesome “Secrecy Bill” that was making its way through parliament and to submit a report on this and other free expression concerns in the country at the UN Human Rights Council. The bill passed a lower house of parliament, but stalled for several months as over 800 changes, many supposedly improvements, were made to the text. But the Secrecy Bill is back. And it’s still dangerous.
We reached out to Raymond Louw, Vice President of South African PEN, to hear more about the bill’s continued threat to journalism and free expression in the country. Louw explained that the Bill passed through the final stages of the parliamentary process with a 190 to 75 vote, but it’s not a law yet:
The next step is for President Jacob Zuma to sign the bill into law or if he has doubts about its constitutionality, to return it to the National Assembly for review. Alternatively, he can refer it directly to the Constitutional Court to establish its constitutionality. If he signs it into law the opposition parties have the option of referring it to the court if they can muster 134 votes, a third of the house’s 400 members. That will be a hard task because opposition members in the house total 136 and not all of them may vote for such a move and the chances of ANC members siding with the vote are slim.
Even if President Zuma does not refer the bill to the Constitutional Court, human rights and free expression groups can do so themselves, and PEN may join them. Louw found several faults with the bill in its present form that suggest it would not pass scrutiny when assessed under the progressive, robust Constitution of 1996. The first problem is a lack of a defense if a journalist uncovers abuse of office or a corruption scandal:
The major criticism remains a failure to include a public interest defense for contravening a provision of the Bill prohibiting the publication of classified information that should be in the public domain in the public interest. Lack of this protection could be harmful to whistle-blowers, journalists, and members of the public.
Punishments for releasing classified information also seem unnecessarily draconian:
The penalties that can be incurred are severe and range from three to 25 years imprisonment. The most severe penalty is imprisonment of between 15 and 25 years for a person who unlawfully and intentionally communicates, delivers or makes available state information which is classified top secret which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state; or who unlawfully and intentionally makes, obtains, collects, captures or copies a record containing state information which is classified top secret which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state.
Another major concern is that too many people in the government will have the ability to decide what can and cannot be classified, and definitions are so broad that the law could be interpreted to apply to a significant amount of information. Moreover, the law punishes not just the person delivering classified information, but potentially the person receiving the information as well—a significant departure from anti-leak statutes in many democracies:
A clause which will have a chilling effect on journalists states that a person in possession of a classified record knowing that it has been unlawfully communicated, delivered, or made available must hand over the document to the police, the intelligence service, or the state department that classified the information. Failure to do so carries a jail sentence of five years. It is uncertain whether having handed over the document the person would be charged with possession. If a reporter is involved—and they are frequently recipients of such communications—he or she may also be confronted with the ethical question of whether to disclose the identity of the person who gave the document.
On Saturday, South African PEN Executive Vice President Margie Orford spoke about the Secrecy Bill and the dangers it poses at the inspiring “South Africa in Two Acts” event at the PEN World Voices Festival in New York. That panel is part of our ongoing partnership with South African PEN to promote free expression and support cultural exchange. We’re now working with South African PEN to develop strategies to halt the passage of this troubling bill, and also supporting the Center’s innovative efforts to promote youth literacy and work with emerging writers. We’ll keep you informed.