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Combating the culture of secrecy in South Africa: the Right2Know Campaign

Written by Julie Reid

The Right2Know (R2K) Campaign held its fifth annual National Summit in February, in Johannesburg, bringing activists and representatives of community organisations from around South Africa together to set a programme of action for the following year - to oppose secrecy.

R2K officially launched in August of 2010, in a direct response to what is now called the Protection of State Information Bill (POSIB), dubbed the Secrecy bill, as a coalition of persons and organisations who were collectively concerned at the draconian nature of this bill before Parliament. In the earliest days of the campaign, ANC MP Luwellyn Landers, who sat on the parliamentary committee responsible for the formulation of the POSIB, smugly attested that R2K would never last. It is now five years later, the Secrecy bill is not yet a law, but this campaign has turned into the biggest and most well supported ground-up communications and information rights movement that South Africa has ever seen. Take that, Landers.

Shortly after its launch, the campaign quickly popularised the term 'Secrecy Bill' to refer to the POSIB, and vigorously campaigned to highlight the various problematic provisions contained within the bill, which gave effect to securocratic endeavours to close spaces for transparency and accountability by, amongst other measures, criminalising the possession, sharing and dissemination of certain government information in terms that were widely criticised as being inappropriate in a democracy, standing in contradiction to the Constitution.

The Secrecy bill steadily became the most vociferously contested piece of legislation in the history of South Africa's democracy, while the debate played out within the halls of Parliament, in the media, amongst civic groups and on the streets in the form of protests and public gatherings. Evidently flustered and exasperated by the continual opposition to the bill, then-State Security Minister Siyabonga Cwele in 2012 labelled those protesting against the Secrecy bill, "proxies funded by foreign spies", in a not-so-thinly-veiled insult directed at the R2K campaign. This insult ignored that R2K's main constituents are people from grassroots level, and from community organisations throughout the country. Not only was Cwele's comment an indication of the disturbing paranoia which saturates our security cluster, but it also shows how those at 'the top' were woefully out of touch with what was/is happening on the ground.

The National Assembly first passed the bill in November 2011. Continued objections to the Secrecy bill forced the first amendment of the legislation in November 2012, after it was referred back to the National Assembly from the National Council of Provinces. The Secrecy bill was eventually passed again in the National Assembly in April of 2013, after only superficial amendments which failed to address constitutional concerns.

The bill, in its most current form, and despite various redrafts and amendments, still falls short of satisfying a variety concerns. The public possession of information which has already been leaked or is in the public domain is criminalised (ludicrous, especially within a converged and digital era), Apartheid-era secrets remain secret, and the bill retains overly broad definitions of 'National Security' which are open to abuse for the suppression of legitimate disclosures in the public interest. The bill transfers the state's obligation to protect its classified information onto society, by making the simple possession and disclosure of such information by any person a crime. This intrusion on the rights of freedom of expression and access to information practically impacts the ordinary person, who stands to be either afraid or criminalised for the mere possession or transference of classified information, even if that information is already in the public domain. The lack of a public domain defence means that a person charged with the unlawful possession or disclosure of such information would not be able to claim a public domain defence in court.

A limited public interest defence does not go far enough to allow for the disclosure of information which could, for example, prevent an imminent public safety risk or environmental threat. According to the R2K campaign, "[t]he danger also remains that the offences of "espionage", "receiving state information unlawfully" and "hostile activity" may be abused to charge whistleblowers, journalists and activists who legitimately disclose classified information believing themselves to be covered by the public interest exception. These offences, which carry extremely harsh penalties of up to 25 years' imprisonment, are not covered by the public interest exception and do not require that the "perpetrator" must have intended to benefit a foreign state or hostile actor".

Remaining a substantial threat to the free flow of information within the country, the Secrecy bill has been awaiting President Jacob Zuma's signature for it to be effected as an Act, since April 2013. The President has yet to sign it, and has provided no indication as to why he has not yet done so. The R2K campaign has called for the President to scrap the Secrecy bill entirely, whilst also requesting that Parliament revokes the Apartheid-era 1982 Protection of Information Act, and instead draft new information-classification legislation which is aligned to the Constitution. None of these three measures have yet taken place.

Jane Duncan's recently published book The Rise of the Securocrats (2014), documents the alarming expansion of authority of the securocrats in South Africa, the increasing political influence amongst this group (which should have limited, if any, political decision making responsibility within a democracy), which is then directly paralleled to an inverted decrease in accountability and transparency for the security cluster. Duncan (2014:44) calls this 'transparent as mud'. In South Africa, the intelligence services, including the State Security Agency, have adopted a default position of secrecy (and by effect, non-transparency and non-accountability) rendering these institutions immune to public scrutiny or open debate.

Security clusters the world over, ours included, shield themselves from scrutiny by repeating the same tired argument: that to publically disclose any of the above would threaten 'national security'. This is hogwash and drivel. It's a weak argument because asking for the financial reports and budgets of a publically-funded state institution for the purpose of accountability to citizens is hardly the same thing as asking for the blueprints of a South African military base (if that really is what they don't want us to know) or the precise daily operations of the President's personal protection unit (who would want to know that? other than perhaps his wives, one of whom reportedly tried to kill him).

The unjustifiable and excessive secrecy which shrouds our state security cluster has been highlighted recently by the release of the 'Spy Cables' documents by Al Jazeera and the Guardian. At the time of writing, these two media outlets had released only the initial cache of Spy Cable documents, stating that additional releases are to come in following days/weeks (similar to the release programme of the Snowden revelations by The Guardian). But the initial cache of information has already revealed some disturbing realities about the operations of South Africa's spooks which point to shady cover-ups, back-room dealings with foreign spy agencies, and major intelligence failures. Significantly, the R2K campaign points out that, "... this important act of journalism would easily fall under the Secrecy Bill's broad and expansive definition of 'espionage', which carries penalties of up to 25 years in jail, and has no public interest defence".

The new State Security Minister, David Mahlobo, took a full 48 hours to release a statement on the Spy Cable revelations and when he did, the content was predictable: that the leaks are an outrage, illegal, and that the State Security Agency will launch a full investigation as to how the leaks happened. But Mahlobo is missing the point entirely. Leaks happen when powerful institutions do not operate transparently, and when leaking information is the only mechanism available to lift a veil of secrecy. Were the State Security Agency and the rest of the security cluster to operate with more accountability, keeping classified secrets to the bare minimum while opening up their operations for public debate, then information leaks would not happen because they would not be necessary. Mahlobo can go on his witch hunt, and find whoever is responsible for this particular leak, but unless the security cluster learns to operate with more transparency, leaks will happen again. And again. And Mahlobo, of course, conveniently declined to offer an explanation for the often deplorable conduct of South Africa's security services revealed by the leaked documents.

Remembering that the former State Security Minister accused the R2K campaign of working for foreign spies, the current Spy Cables scandal has, amongst other things, shown us that our own security services are, at times, willing to cooperate with foreign spy agencies in manners, which under scrutiny, a great number of South Africans are likely to find unacceptable. So Cwele, who is working for foreign spies now?

A knee-jerk reaction from South Africa's security cluster to the leaked cables would be to argue that this massive leak highlights the need for tighter classification of state information, as encompassed by the Secrecy bill. But this argument would be incorrect. The Spy Cable leaks have indeed embarrassed the security cluster, exposing that it has engaged in activities of a nature that would never have been agreed to through an open consultative and public process of democratic decision making, and if the cluster were held accountable, operated with minimum secrecy and maximum transparency as it should. If nothing else, the Spy Cable leaks have proved how our security agencies are in need of more oversight, because it has been revealed that they are incapable of acting responsibly and ethically on their own. The Spy Cable leaks have also demonstrated why the Secrecy Bill is such a terribly bad idea.

To hazard a guess at why President Jacob Zuma has not yet signed the Secrecy bill into law would amount to pure speculation. It is likely, however, that the President is fully aware that the bill contains provisions which would not pass Constitutional muster. Should the President sign it, the R2K is committed to launching a Constitutional Court challenge.

* Dr Julie Reid is a researcher and academic at the Department of Communication Science, at the University of South Africa (UNISA), the President of the South African Communication Association (SACOMM), and project leader for the Media Policy & Democracy Project (MPDP). She is a Gauteng provincial coordinator for the Right2Know Campaign (R2K), and sits on the R2K Media Freedom & Diversity committee.

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