The Creator has been particularly unconcerned about the constructed fuss over the Protection of State Information Act, chiefly because constructed fusses give the Creator a case of projectile vomiting. In any case, the Creator does not believe that the Zuma administration can protect anything, and therefore the question of whether the Act is good or bad does not raise itself as an issue. The more obvious issue was the bad faith and general malfeasance of the media, which the Creator is mildly interested in, being a connoisseur of the contents of obstructed toilets.
Notwithstanding, perhaps it’s worth taking a look at the Act itself, simply in order to raise the question of what good governance would look like if we had access to such.
There is no real doubt that a nation needs such an Act. There are people who want to do bad things toSouth Africa if it is convenient to them to do so. Such people should not be provided with information which makes it easier for them to do bad things. That information therefore needs to be kept secret. The location, number and quality of our weapons of mass destruction, the names and addresses of our secret agents, the access codes to our official residences and safes and suchlike – these things can be legitimately kept secret.
But what about information which can be used to do bad things but which people might want to know out of interest? Should it be illegal to photograph bridges because such photographs might be used by people wishing to sabotage them, as in the old Soviet Union? Surely not. Hari Kunzru’s latest excellent novel Gods Without Men starts off with a fairly detailed description of how to cook up crystal meth; assuming that this description is accurate, given that crystal meth is illegal in these parts, shouldn’t the book be banned, or at least redacted? (Ironically, the book ends with a “redacted” portion of an official report of an eighteenth-century Spanish government inspector.)
Obviously the issue is complicated. What we need, therefore, is for the reasons for suppressing information to be absolutely clear. Also, someone with access to the public needs to have access to that information and to have the right to challenge its suppression. And the nature of suppression, and the processes by which information is suppressed, needs to be absolutely transparent. In the Soviet Union, you just stamped “Top top secret” on everything, which often meant that the minutes of official meetings of local councils couldn’t be read by the participants because they didn’t have KGB clearance. Manifestly that’s a problem.
You might be interested in the Protection of Information Act of 1982, which is still technically in force. This Act gives the President the power to declare anything secret without right of appeal, sets out a large and nebulously-defined list of other things which are to be considered secret, not to mention secret places, and declares that any unauthorized person found in those places, or with that information, or helping anyone get there, or not telling anyone that someone has been there or had that information, or just interfered with a sentry in the performance of his duties, will go to jail for a fixed period (maximum 20 years), and that the trial may be held in secret.
Now that’s a draconian law – and one which the media hasn’t exactly ruptured itself protesting against over the last thirty years.
In short, there’s obviously good grounds for assuming that any such law would be abused unless there were plenty of safeguards against such abuse. The media’s argument, insofar as there is one, is that they are the ones to provide such safeguards. Therefore they want any act to include a “public interest clause”, under which anyone with a really, really good lawyer and lots of money can violate the law and then say that it was in the public interest to violate the law, buttressing this saying with the august words of an expensive lawyer before whom all judges bow down and lick the boots thereof.
That would possibly work if the media consisted of people who had the best interests of the country at heart. Unfortunately, the media consists partly of people who will print anything if it attracts the attention of advertisers and partly of people under the control of foreign governments or multinational corporations or both. This is not a desirable combination of people into whose hands to place the security of the nation; if the United States had declared its intention to invade South Africa, the South African press would happily publish details of the conditions of the invasion beaches and paratroop landing sites, justifying this on the grounds that it is in South Africa’s public interest to be invaded by America, just as the South African press has supported every other aggression undertaken by Western imperialists everywhere.
So what we need, instead, is a comparatively independent state body which can regulate the processes of the suppression ofinformation, a body not under the control of the executive or any other interested group of parties (which excludes the judiciary, for instance, which is under the control of big business). Obviously this needs to be an oversight body elected by the people and through which individuals nominated by the people have access – a kind of tribune system. And, of course, if a tribune abused the position, that tribune could be removed from office, or even punished.
So, to sum up: clarity, transparency, and responsibility to the public. Now let’s have a look at how the Protection of State Information Act of 2012 (www.pmg.org.za/files/bills/110905b6b-2010.pdf) lives up to these premises.
It kicks off by talking about the harm caused by excessive secrecy and about promoting the free flow ofinformation – so far so good, although obviously words used under the Zuma administration never mean what you think they mean. The objects are to regulate the processes of secrecy, categorise secrecy, provide for a review of such secrecy, and establish a Classification Review Panel. This sounds a lot like the ideal system which the Creator mentioned earlier – but the devil’s in the details, not so?
Under “General principles”, it’s made clear that all information not classified is open – which is a good point. The Act has to be consistent with international law and the Bill of Rights – also a good point.
“Organs of state” (basically ministries, municipalities and National Key Points) have to work out their own procedures under the auspices of the Act.
Then there’s something about preserving valuable information (making sure it isn’t lost or destroyed – that’s not to do with secrecy except insofar as material should not be “accidentally” lost, which is a good law against informal concealment).
There’s three categories of secrecy for information; confidential, secret and top secret. Here’s the first problem; these are very vaguely defined. Are my hairdressing bills potentially information which could harm the state of revealed? Then classify them! My hair must be defended against our nation’s enemies! Trouble is, although secret and top secret can only be classified by the head of an organ of state or designated representative thereof, anyone in an organ of state can call something confidential.
To be fair, it’s made clear that classification can’t be used to cover up crimes, or avoid criticism, prevent embarrassment, hinder competition or obstruct the release of information not classified. Great, if you can prove it. Difficult to prove, but at least it’s there in black and white. Interestingly, if there’s doubt about the need for classification, the Minister must decide. Among examples of suitable classification are protecting government agents and those serving the government who might be under threat, harming national security (left undefined, unfortunately), or damaging relations with other governments. Fair enough, if we are careful – but what if we aren’t? And how do we know it’s true? However, declassification is supposed to be automatic the moment the problem goes away – meaning that it should be possible to point at the idiotic or corrupt behaviour of people in the past, which might inform activities in the present. That sounds good. And noinformation may be classified for more than 20 years, which is better than the British system. And all classified information must have its classification reviewed within ten years, or may be reviewed at any time. Cool! This is done by the Classification Review Panel, whose deliberations must be published.
So far it’s hard to see what the big problem is.
Anyone can request classified information, which must lead to a review of the classification. That information must be released if the release is in the public interest (which is fairly clearly specified as the danger of breaking the law or environmental harm). So there is a “public interest clause”, it just doesn’t allow the media to ride roughshod over the state armed with expensive lawyers. And this appears to be what the fuss is all about.
The Classification Review Panel is appointed by the National Assembly from lists drawn up by the Joint Standing Committee on Intelligence (which of course includes members from all major political parties – the problem here is that it doesn’t include the general public, but at least it’s some kind of public scrutiny). The panel must be headed by a senior lawyer (damn, blast, hell and corruption). Members mustn’t be office-bearers or foreigners or crooks or loonies. And the National Assembly may depose members upon sufficient grounds. It falls under the National Assembly, to which it reports, meeting at least monthly.
Anyone, if dissatisfied with the workings of the system, may take the system to court.
So far, no problems at all. Now, however, comes the criminalization factor.
It’s 15-25 years jail for distributing or receiving top secretinformation. (Maximum 20 years if it’s a non-state actor involved.) 10-15 years for secret information. 3-5 years for confidential information. However, courts are specifically given the right to lay down lesser sentences than these if they can provide good reason for doing so. This all seems tough, but potentially fair. (Remember, this means doing all this before the review processes are exhausted, or after the request was turned down.)
Harbouring someone likely to commit a crime under the Act gets you up to 10 years. That’s pretty tough, although someone giving aid and comfort to a foreign agent or commercial spy deserves what they get. Intercepting, damaging or providing the material to intercept or damage classified information at any level gets you up to 10 years. (There’s a huge amount of specific detail here regarding computer hacking, probably influenced by the WikiLeaks affair.)
Any foreign spy in the country who doesn’t register as a spy is liable to up to 5 years, even if they haven’t otherwise broken the law. This is kind of cool, in a way.
Conspiring to get someone else to violate the terms of the Act gets you the same penalty as if you had carried out the violation yourself. Fair enough.
Disclosing classified information (that is, if it can’t be shown to have done any harm) gets you up to five years, unless you can provide a really, really good reason.
Providing false information to a national intelligence structure can get you up to five years. (Mo Shaik and Billy Masetlha would be getting out about now, which the Creator thinks is unfair – they should be inside for good.)
Improperly classifying information as top secret gets you up to 15 years; secret gets you up to 10 years, confidential up to 5 years. This sounds about all right. Failure to comply with the Act (that is, officials setting up the procedures) gets you up to two years. And an official leaking classified information gets you up to 10 years – or 15 years if you did it to a foreign state. This looks as if it could be used against whistleblowers, although the whistleblower, if legitimate, could surely claim that a law had been violated or the state or environment would be under threat if the information weren’t released, so there are ways of avoiding the penalty. Someone like Mordechai Vananu, however, would have been nailed under this.
The National Director of Public Prosecutions oversees the prosecution of any case involving a penalty of more than five years in jail. And there’s a long section regulating the presentation of classified information in the courtroom.
Ministers are ultimately responsible for the implementation of the Act.
Now, at this stage, what we see is that there’s no real problem with the Act as it exists. Obviously, the Act can be abused. However, as a sequence of phrases regulating the control of information, it’s probably one of the most sensible Acts on the subject in the world. In short, the attacks on the Act made by organizations like Right2Know depend entirely on a) the hostility of those organizations and their supporters to the proper functioning of the South African state, and b) the ignorance of the public regarding the Act. Virtually everything which has been said publicly about the Act by anyone outside government has been bullshit to a greater or lesser degree, and bullshit intended to panic the public into taking bad decisions which ultimately harm the nation and benefit the corrupt wealthy minority.
None of this means that the public shouldn’t be suspicious of the Act once it comes into force, for fear that municipalities, for example, might try to use the Act to cover up their misconduct. But since the Act provides heavy penalties for doing that, a vigilant public can make good use of the Act. And should.
And that’s all there is to it. All you have to do is read the damn thing. Why has nobody done this?