Thursday, 24 November 2011

On the Secrecy Bill

The first piece below is something I wrote-up for Business Day (and received the usual uninformative silence) on the core problem with the Bill. Following-on after that are some additional thoughts. One of the difficulties in writing this was figuring-out which of the many versions floating around on the internet was the one passed by Parliament; for those interested, the link is provided at the end.

Is logic, rather than public interest, the problem?

Like many people, I had until now been willing to take the protests against the Secrecy Bill (officially: Protection of State Information Bill) as correct, without actually resorting to reading the proposed legislation myself. Besides laziness, this was partly because the earlier version of the Bill sounded so blatantly problematic. However, since its redrafting – thanks to vocal opposition from R2K, media bodies and principled senior members of the ANC – many of the more conspicuous problems have been eliminated, and consequently the issues have become more subtle. Now that the Bill has been passed by the National Assembly, it may be valuable to take a step back and further examine some of the speculation around the intentions and outcomes of the legislation, in light of some details regarding its contents.

I would suggest that this is an area for lawyers more than anyone else (even civil society activists), but in the absence of any detailed commentary from the profession I would like to tread on their turf briefly. The reason is that the ostensible problems with the legislation are primarily related to its internal logic. This is pertinent because one gets the impression from legal minds who deal with government that the state is fairly incompetent when it comes to the drafting of legislation; that makes it hard to tell upfront whether we are dealing with malicious intentions or just stubborn stupidity. One the one hand, it is hard to believe that the timing of the reintroduced Bill relative to ANC resolutions at its Polokwane conference regarding the media is simply coincidental. On the other, if the intention was to target the media and its sources it remains unclear whether the Bill will achieve this, and we would need to credit the drafters with a high level of competence and deviousness, which seems unlikely given other experiences and previous versions of the Bill.

The concerns of the Right to Know campaign and others appear to centre around the fact that while the legislation specifically states that information may not be classified to hide governmental failures per se (including even ‘administrative errors’), and the section on penalties focuses most heavily on espionage and ‘hostile acts’ against ‘the Republic’, there are punishments detailed for receipt and transmission of classified information that make no mention of whether the information was correctly classified in the first place. At first sight, this seems like a simple logical mistake on the part of the drafters. It does not require a ‘public interest’ clause to remedy, simply a clause stating that if a courts find that the document was improperly classified – either deliberately, e.g. to ‘conceal breaches of the law’ such as corruption, or simply without adequate justification – then the person distributing or receiving the information cannot be prosecuted.

It really does seem logically incoherent not to have such a clause. But it does have substantive implications, as it might give a corrupt official a strategic advantage, in that while they risk punishment for incorrect classification, they can use classification to impose a risk of punishment on those concerned with the public interest.

The other pertinent aspect is whether the four forms of incorrect classification are sufficiently comprehensive. Admittedly, an additional clause states that classification ‘to achieve any purpose ulterior to the Act’ is punishable. However, it does not mention punishment for incorrect classification that cannot be shown to have been deliberately ‘ulterior’. Thus the legislation becomes more clearly asymmetrical: if you receive information that should never have been classified, you are still liable to severe punishment if the mere act of receipt or possession can be proved; if you classify information that should never have been classified then you are only liable to punishment if ulterior intent can be proved. It is generally the case that intent is harder to prove than something like receipt or possession; the axe is almost guaranteed to fall on the well-meaning journalist, but only on the corrupt official with about the same level of probability as there was of their corruption being found out in the first place. For corrupt officials, it’s almost a one-way bet.      

Minister Cwele’s reported statement on a public interest clause – that it would allow disclosure of correctly classified material – is itself logically incoherent. The existence of punishment does not, in itself, prevent anything; an individual could still choose to put even correctly classified information in the public domain. A public interest clause would only protect that individual if the information was, you guessed it, in the public interest. The real question then is whether the current provisions in the legislation – regarding classification and incorrect classification – adequately cover public interest issues. If they do, then we simply need the logical clause already mentioned, not an explicit public interest clause. If they do not, then the legislation should be thrown-out for that reason alone.

Given the Minister’s comments it is hard to see how the legislation could pass a test of its adherence to the clauses of the Constitution on access to information (‘the right of access to any information held by the state’), or even freedom of expression (‘freedom of the press’ and ‘freedom to receive or impart information or ideas’). In terms of intent, we can only speculate as to whether the Minister’s advisers and colleagues have malicious intent or whether they are just fools. How pathetic that it should have come to this.

Interestingly, if it can be shown that the ANC has persevered with the legislation to avoid ‘embarrassment’ to the organisation or individuals within it (one form of improper classification in the Bill), then it has arguably been party to an ‘ulterior’ purpose for classification of information and all MPs who voted in favour could logically (though perhaps not legally) be liable for prosecution under the very legislation they have passed. Now there’s an idea to conjure with...

Some additional thoughts

There are three other aspects of the legislation that concern me but have received relatively little attention. The first relates to a clause - so far entirely unmentioned in the commentary I have seen - on diplomatic relations. The second, is the scope for stacking of the Classification Review Panel which is supposed to oversee, and confirm the validity of, classifications. Finally, there is a provision on inducement of an offense which exacerbates the problems I raise above.

The first concerns clause 3.d. which states that information may be classified if its release would:
"seriously and demonstrably impair relations between South Africa and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the Republic". Pierre De Vos (see links below) has focused on how this could be used to hide foreign funding of political parties. But I think the forms of possible abuse are much more blatant. For instance, an official could argue that any information that shows the government denied the Dalai Lama a visa for Desmond Tutu's birthday party because of pressure from China could indeed 'undermine ongoing diplomatic activities'. But not ones that the country's citizens may approve of. More sinister is the fact that this is an open clause that would allow the concealment of the government's involvement in CIA-style renditions. It is no surprise that Australia - PM Julia Gillard increasingly trying to be the 'Tony Blair of the south' - passed this sort of legislation recently.

The provision for a Classification Review Panel, and the various criteria laid down for members of this, should be somewhat comforting. It excludes: "a member of Parliament, any provincial legislature or any municipal council", anyone "appointed by, or is in the service of, the state and receives remuneration for that appointment or service" and "an office-bearer or employee of any party, movement or organisation of a party-political nature", along with those convicted of various sorts of misdemeanours. The problem is, as we have seen from various bad forms of cadre deployment (I happen to think good forms exist but that's a separate topic), any such individuals can simply resign their posts and become eligible for appointment. Whether someone would do that, depends on the likely remuneration, but also personal and political benefits they might receive from serving certain vested interests. The power to appoint is, reading between the lines, held by the Joint Standing Committee on Intelligence, which "must table a list of five persons for approval by the National Assembly". Given the dubious process of recent judicial appointments, this should not put anyone's mind at ease.

Finally, there is what i'll call the 'Lamo-Manning' clause. Section 42 states that: "Any person who attempts, conspires with any other person, or aids, abets, induces, instigates, instructs or commands, counsels or procures another person to commit an offence in terms of this Act, is guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable." The problem here is that, again, no reference is made to whether the the information was correctly classified in the first place. The reason for the name is that one of the reasons the US claim Julian Assange (of Wikileaks fame) committed a crime is because he induced Manning to leak the diplomatic cables - one presumes therefore that they have similar legislation. (As i've argued elsewhere, SA is behind the curve in terms of oppressive democracies; the US 'PATRIOT Act' is an example of how bad things can get). Based on that you would think that I would call it the 'Assange-Manning' clause, except there doesn't appear to be any evidence of Assange doing this (so far), but interestingly there is evidence of an FBI informant - Adrian Lamo - doing precisely that. 

My conclusion remains the same. There are very significant problems with the Bill, that could lead to the ability to classify being abused. It is still not wholly clear whether this is due to incompetent drafting, or malicious intent. One has to suspect that some combination is likely. That raises all sorts of interesting political questions - for instance, whether some in the intelligence agencies (who, recall, played a key role in Zuma's acquittal) may have been too keen to get rid of Ronnie Kasrils and his emphasis on transparency before he could develop the Bill further - but those would take us too far afield and into the realm of speculation.


The clause on diplomatic relations mentioned above as '3.d' should be 14.3.d.

Notes and links

The version of the Bill passed by Parliament is here
Ben Turok, one of the few remaining serious intellectuals within the ANC who apparently also avoided participating in the vote, was on the radio (SAFM) yesterday saying how difficult it has been for the public and MPs to be clear on what the legislation means given the many revisions (and non-revisions). Recent news is that 'the ANC' is threatening to take action against dissident MPs...

There has been some detailed legal comment on the Bill. The Nelson Mandela Centre for Memory along with Wits has produced this recent summary:

However, I don't feel that it gives a reader much of an idea of what the Bill looks like, and I think continues the superficial emphasis on 'public interest' without going into the details. I found the comment on a 'public interest override' more useful.

Pierre De Vos's blog is always good, though again I think he initially gets too caught-up in some of the hype. His most recent post, from earlier today, is better and more detailed but still misses the logical issue I focus on above:

E.g. He says that "
a limited public interest defence can be written into the Bill which will set out criteria for when classified documents could be lawfully possessed and published because it was in the public interest to do so". My view is that it makes more sense to prevent the classification of information unless it is in the public interest. Rather than allowing that and then putting measures in place to correct it. Admittedly, sometimes it is not possible to define public interest ex ante - and this is perhaps why maybe my argument is more 'logical' than 'legal' - but that doesn't seem a good enough reason to leave so much work for ex post processes.

De Vos's preceding piece touches on the issue briefly (5th paragraph from the bottom) but the emphasis is elsewhere: