Parliament Should Refer Legislation to the Constitutional Court
April 29, 2013
Despite substantial improvements to the secrecy bill, whistleblowers and journalists who expose corruption and other issues of public interest could still find themselves in prison. The Constitutional Court should decide whether the current version undermines basic rights protected by the constitution.
Cameron Jacobs, South Africa director

(Johannesburg) – South Africa’s “secrecy bill,” adopted by the National Assembly on April 25, 2013, lacks essential protections for whistleblowers, Human Rights Watch said today.

The Protection of State of Information Act aims to regulate the classification of state information. Earlier drafts were widely condemned by the media, civil society, and opposition parties because of provisions that undermined the right to access information of public interest. The current version, while improved, remains unclear on the key question of whether whistleblowers and journalists seeking to expose certain sensitive issues, such as corruption, would be protected under the law, Human Rights Watch said. 

“Despite substantial improvements to the secrecy bill, whistleblowers and journalists who expose corruption and other issues of public interest could still find themselves in prison,” said Cameron Jacobs, South Africa director at Human Rights Watch. “The Constitutional Court should decide whether the current version undermines basic rights protected by the constitution.”

The act includes amendments stating that prosecutions under the law must respect the fundamental rights of freedom of expression and the right of access to information. This is significant because the previous version gave the law precedence over the Promotion of Access to Information Act.

Chapter 11 of the law also clarifies that that there must be unlawful intent to disclose information. That is a positive change from the previous version, which said that a person could be prosecuted if they should have known that they were revealing classified state information.

Section 41 (c) of the act,  inserted after critics called for amendments to protect journalists and others acting in the public interest, says that a person will not violate the act when disclosing information that reveals criminal activity, including any criminal activity regarding the improper classification of information. However, it is unclear whether this provision would apply to someone who exposes conduct that might not be considered criminal in an effort to promote transparency and accountability, Human Rights Watch said. 

“Article 41 is a grey area in the Act and leaves key questions unanswered,” Jacobs said. “For example, would investigations on the Nkandla issue – the huge expenditure of state funds at President Zuma’s private home – be protected?”

Nkandla is a National Key Point, meaning it has been declared an area of strategic importance under the apartheid-era 1980 National Key Points Act. Under the 1980 act the Defense Minister can declare any area a “national key point” if the area is considered so important that its loss, damage, or disruption may prejudice the country. Section 4 of the act criminalizes any action by a person revealing information about a national key point. Therefore information surrounding Nkandla, when read together with the National Key Points Act, would be regarded as classified.

As a result, the Protection of State Information Act could severely limit the matters the news media may report about, Human Rights Watch said. For example, it is in the public interest to reveal how the government is using taxpayers’ money, even if the spending for a particular project would not necessarily be a crime.

“The South African government has legitimate interests in protecting information for national security purposes,” Jacobs said. “But these interests need to be appropriately balanced to ensure that the law doesn’t violate South Africans’ access to crucial information in the public interest, nor penalize those who make this crucial information available.”