Letter to Mr. C.V. Burgess, Chairperson of the Ad Hoc Committee on the Protection of Information Legislation
November 23, 2010

Dear Mr. Burgess,

We welcome your statement of November 1 that your committee, charged with overseeing the passage of the Protection of Information Bill (B6-2010), will be conducting a thorough review of the Bill with a view to narrowing its scope. This is the right decision to make on a matter that has very serious consequences for the effective functioning of South Africa's democratic society. As it currently stands, the bill raises serious concerns about its compatibility with South Africa's human rights obligations under both international treaties to which it is a party and its own Constitution.

We urge you to carry out a comprehensive and detailed redrafting of the Bill. Human Rights Watch recognizes that the government and parliament have a right and a duty to protect against identifiable threats to national security. However, that right and duty must be exercised in a manner that respects, protects, and fulfills the rights to freedom of expression and access to information. We therefore urge the committee to take this opportunity to ensure that a new draft will properly comply with human rights standards, and properly balance the interests of safeguarding legitimate national security goals with the protection of free speech and the securing of democratic governance.

Governing Legal Standards
As you know, South Africa's obligations regarding freedom of information and expression derive from a number of sources: Articles 16 and 32 of the Constitution, Article 19 of the International Covenant on Civil and Political Rights (ICCPR), and Article 9 of the African Charter on Human and People's Rights. While these rights may be subject to restrictions on grounds of national security, the restrictions must be provided for in law, necessary to achieve a specific, permitted purpose, and be proportionate to the aim.

Further, according to the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, which have been endorsed by the United Nations, no restriction on freedom of expression or information on the ground of national security may be imposed unless the government can demonstrate that the restriction is prescribed by law and is necessary to protect a legitimate national security interest. The burden of demonstrating the validity of the restriction rests with the government, which must show that:

  • the expression or information at issue poses a serious threat to a legitimate national security interest;
  • the restriction imposed is the least restrictive means possible for protecting that interest; and
  • the restriction is compatible with democratic principles.

In addition, the Johannesburg Principles state that laws on public information must be accessible, unambiguous, and drawn narrowly and with precision so as to enable individuals to foresee whether a particular action is unlawful. The laws should also provide for adequate safeguards against abuse, including access to prompt, full, and effective judicial scrutiny by an independent court or tribunal of any imposed restriction.

Weaknesses of South Africa's Proposed Protection of Information Bill
Based on these standards and principles, we believe that South Africa's proposed Protection of Information Bill as currently drafted is overly broad and vague and would promote secrecy over transparency, curtailing the right of access to information to an extent that would be very damaging for public participation and good governance, which are central to South Africa's democracy. These concerns are compounded by the bill's proposed creation of a series of broad offences that impose substantial criminal penalties, and the absence of a public interest defense clause.

We therefore welcomes the indications Minister Cwele has already given that Sections 11 and 12 of the Bill, relating to the withholding of information in the "national interest" and protection of "commercial information," respectively, may be withdrawn. As you know there is widespread criticism that these sections are dangerously vague and broad and could result in a potentially vast number of documents, which should be available for public scrutiny, being subjected to unnecessary and perhaps harmful secrecy. As provided for in the Johannesburg Principles, the law should sanction the restriction of information only to protect a legitimate national security interest that is specifically and narrowly defined (Principle 12).

With this as a starting point, and the concerns outlined above in mind, we would strongly encourage you to go further and:

  • Amend the scope of sections 3 and 16, which, taken together, allow a very wide category of persons to determine what information may be subject to classification, a situation which is likely to lead to over-classification and abuse. Moreover as pointed out by the Human Rights Commission, the scope of persons empowered under section 16 is inconsistent with the Promotion of Access to Information Act.
  • Amend Chapter 11, in particular sections 32 - 35, 37 - 39, and 43 which create overly broad offences. These offences, which range from "hostile activity offences" to "prohibition of disclosure of state security matter," are punishable for up to 25 years, yet are very broad, with ill-defined concepts of intent. Under such provisions, a person could face criminal sanctions, for example, for unauthorized communication, delivery, collection, or copying of "top secret" information without knowledge of the potential harm the information could pose. The committee should bear in mind Johannesburg Principles 15 - 17, which stipulate that:
    • No person should be punished on national security grounds for disclosure of information if (1) the disclosure does not actually harm and is not likely to harm a legitimate national security interest, or (2) the public interest in knowing the information outweighs the harm from disclosure.
    • No person may be subjected to any detriment on national security grounds for disclosing information that he or she learned by virtue of government service if the public interest in knowing the information outweighs the harm from disclosure.
    • Once information has been made generally available, by whatever means, whether or not lawful, any justification for trying to stop further publication will be overridden by the public's right to know.
  • Include a public interest defense clause that recognizes the standard codified in principle 13 of the Johannesburg Principles - that in all laws concerning the right to obtain information, the public interest in knowing the information shall be a primary consideration.
  • Include an effective mechanism to oversee classification decisions that would result in information not being subject to disclosure. Any decision to classify information so that it cannot be disclosed should be reasoned and in writing and subject to a review of the merits by an independent judicial authority.

We believe that public access to information is crucial for the promotion and protection of rights and for the long-term strength and accountability of South Africa's democratic governance. We therefore hope that you will strive to incorporate the aforementioned revisions to the Public Information Bill.

We look forward to future engagement with the committee when a revised draft of the Bill is available for public consultation.

Yours sincerely,

Rona Peligal
Executive Director
Africa Division

Siphokazi Mthathi
South Africa Director

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