South African MPs recently voted overwhelmingly in favour of the “˜Secrecy Bill’ on “˜Black Tuesday’ (November 22), despite objections from civil society, the media and foreign investors. The Bill is said to signal a “dark day for democracy” and a return to apartheid-style secrecy. There is a major concern the Bill might be abused by politicians wishing to hide their corruption and self-enrichment.

The Bill, the proposed Protection of State Information Act, aims to replace the current, unconstitutional and draconian South African legislation dealing with state security and national intelligence, which dates from the apartheid era. Offences against the proposed Act can trigger sanctions of up to 25 years in jail for a journalist, whistleblower, or any other individual in wilful possession of classified information that could harm the republic if disclosed.

It is however important to understand that there have been two versions of the Bill, and, while the first version was not without its problems, the latest is thought to be democratically unacceptable, even though 120 amendments improving it have since been incorporated. According to a joint editorial by South Africa’s leading newspapers, the Bill was presented and then withdrawn in 2008 by Ronnie Kasrils, then minister of intelligence, but came to the table again in 2010, with alarm bells, under President Jacob Zuma’s more pliant cabinet.

While some of its critics are opposed to the Bill in its entirety, the main objections have been to the changes introduced to the 2010 version, especially the unconstitutional removal of the public interest clause, the reintroduction of which, the ANC has so far resisted.

The Wits School of Law and Nelson Mandela Centre for Memory want some important provisions from the 2008 version of the Bill to be reinstated as they would offer a balance between the protection of national intelligence and transparency.

Organisations such as the Right2Know Campaign – that has been leading the charge from civil society – however, demand that the Bill be drastically rewritten or thrown out entirely. Mark Weinberg, national co-ordinator of the Right2Know Campaign, says: “We have had problems with every version to date, although the Bill in the last 6 to 8 months has seen improvement as a result of campaigning, it is still draconian and undemocratic. The 2008 version was better than 2010 but both are extremely problematic. And while the 2010 version has improved some aspects, it is not perfect, and the 7-point freedom test we have developed to improve it has only been partially addressed.”

While the challenge this Bill has been met with is democratically robust, the Act has been met with a typical South African tendency to exaggerate to the extreme. And more problematically, most “˜well-informed’ people I spoke to in Johannesburg this week have not even read the relatively short Bill, but nonetheless feel entitled to comment on it. Weinberg disagrees: “Who are these people who have not read the Bill? And, anyway, it is unreasonable to expect all South Africans to have read every piece of legislation… It is outrageous slander to say civil society has not read the bill, when there are members of parliament who have not read the bill. There have been at least 4 occasions when we have been debating with them on radio when it has been obvious MPs have clearly not read the bill.”

One of the overarching problems is that the Bill was contemplated in terms of its 2008 provisions to be complementary to the Promotion of Access to Information Act (PAIA) 2000, but the 2010 version changes this. The PAIA which – in addressing apartheid secrecy – allows a member of the public to make an application for information, which cannot be unreasonably frustrated by the authority in whose possession it is. Unfortunately the current 2010 version of the Bill is not only no longer in harmony with the PAIA, but it also overrides it. In this context, there are four main issues that have been identified by the NMCM and Wits School of Law that could if addressed could make the legislation more palatable and reintroduce the healthy 2008 provisions of the Bill that have been changed:

Allowing for the automatic declassification of apartheid era documents with some special exceptions.

Ensuring that a request for classified information is dealt with in terms of the Promotion of Access to Information Act to bring it line with the constitution.

The offences provisions should focus on the harm caused by disclosure of classified information and not the disclosure per se; and

The public interest override must be reformulated to reduce the high illegality and content thresholds it imposes for declassification to be deemed in the public interest, and that a record where the public interest clearly outweighs national security should not be classified.

The latter is one of the most troubling and unconstitutional provisions, and to which the Congress of South African Trade Unions has also objected.

Considering all the fuss, it is fair to ask if the Bill can be justified at all?

It was recognised as early as the 1990s that South Africa’s secrecy laws needed to be overhauled, when talks for the negotiated settlement began, and one of the main tasks of the Truth and Reconciliation Commission was to disinfect with sunshine the vast collection of toxic apartheid state records. Secrecy was, as Verne Harris of the Nelson Mandela Centre for Memory says, the “modus operandi”, of the apartheid state.

And there are still some noxious skeletons lurking in apartheid’s closet that might be affected by declassification, and upset the delicate foundations of the negotiated settlement even further. But some of these are also understandably in the public interest to disclose.

These documents are out there because it was almost impossible for the TRC to include all classified documents within its ambit, and so, only those state structures “subject to national archival legislation” were investigated, according to Harris, who has been heavily involved with both the TRC and commentary on the Bill. The implications of this means that even though a mass-destruction of information commenced prior to 1990 by the apartheid government, there is without doubt a huge stash of documents in the hands of individual operatives, state structures dealing with military or national intelligence, and private archives – and the correct treatment of their reclassification and declassification will be tricky to evaluate.

The nature of any information deemed to be classifiable falls within a wide scale of registers, and the debate is insufficient when framed within what Harris calls “unsustainable binary opposites” of secrecy and transparency.

So here it warrants pointing out, first, that while media freedom is essential to the proper functioning of a democratic society, and such freedoms could certainly be compromised by the problematic clauses within the 2010 redraft of this Bill: media freedom is a related aside to the objects of this Act. This is primarily a document of relevance to the treatment of national intelligence on issues such as defence or the economy, which is a reasonable object of the law. So while there are undoubtedly issues with the 2010 version of the Bill that are unconstitutional, and must be amended, where national security is concerned, however, the Bill is, in my opinion, otherwise, both necessary and politically justifiable. Weinberg says: “Nobody is disagreeing that there are a limited number of secrets that the state needs to keep, but this bill is too broad in scope, draconian in its penalties, and untransparent [sic] in its mechanisms.”

Ultimately, it is likely, especially in the light of the objections, that President Jacob Zuma would have to refer the Bill to the Constitutional Court before the Bill becomes the law, and certainly if the Bill became the law with the dodgy provisions. Whether the ANC likes it or not, Deputy President Kgalema Motlanthe has already acknowledged that the public interest clause would have to be tested by a judge. Also, a sufficient number of MPs opposed the Bill, and so therefore there should be enough support to for it to be taken to the Constitutional Court, which the DA’s Helen Zille and Lindiwe Mazibuko have vowed to do if needed, and it is there that the offending provisions will be thwarted, upholding the challenge from civil society. However uneven the quality of the debate, the vigour with which most South Africans have participated in it means all is not as dark as it seems.

Desné Masie is a journalist and academic. She is a former senior editor for the Financial Mail in South Africa, and is currently studying towards a PhD in finance at the University of Edinburgh Business School.