“Since 1994, our country has been facing an increasing threat of espionage because of inadequate provisions in the 1982 Act. The foreign spies continue to steal our sensitive information in order to advantage their nations at the expense of advancement of South Africa and her people. The ANC government may never allow such undermining of our national security to continue.” – Siyabonga Cwele
The week before South Africa’s parliament passed the Protection of State Information Bill, a controversial bill that would punish whistleblowers and the media for possessing or disseminating sensitive information, State Security Minister Siyabonga Cwele delivered a speech in its defense at the National Assembly in Cape Town. He claimed that the public had given significant input into drafting the bill and that the authors of the legislation had taken their criticisms and suggestions very seriously. He thanked the public, and the consponsors of the bill, Nhlanhla Nene, Lindiwe Sisulu, and Ronnie Kasrils. In presenting the African National Congress’ rationale for the bill, he invoked section 198 of South Africa’s Constitution, which outlines the government’s duty to its citizens in upholding national security:
National security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life.
Cwele claimed that South Africa was under siege: from foreign spies, who are using South Africa’s state secrets to enrich themselves at the country’s expense, from Information Peddlers seeking to destabilize the region with rumors and speculation, and from the “local proxies” of international data thieves, bankrolled and controlled by forces hostile to South Africa. He does not elaborate on what state secrets or classified information have been leaked in the past to prompt this new legislation, but he does point to the Meiring Report as justification for his “information peddling” claims.
General Georg Meiring wrote a report in 1998 alleging that the fictitious Front African People’s Liberation Army was planning to overthrow the South African Government, including among a long list of co-conspirators the American Pop Singer Michael Jackson. Meiring gave this report to Nelson Mandela, who launched an inquiry and found the claims to be, in Cwele’s own words, “mere fantasy.” It is hard to see the Meiring Report as anything but a vindication of open, transparent government and its ability to withstand disinformation campaigns from agent provocateurs, even those as well-placed as Meiring, who was forced to retire as head of defense of South Africa when his report proved fraudulent.
One change that Cwele claimed the ANC could not accommodate to the bill was the inclusion of a public interest defense. The bill as written does not differentiate between sensitive information kept secret in the interests of the state and sensitive information the public has a right to know and does not include a mechanism for evaluating leaks based on this criteria.
While Cwele stated pointedly that this legislation was not aimed at the media, he neglected to address the bill’s vindictive sentencing provisions: 5 years for possessing sensitive information, 25 years for publishing it, and a paltry 5 years for government officials found to be improperly classifying information as secret.
When the penalty for publishing information deemed sensitive to the state eclipses the penalty for maliciously mislabeling information as sensitive by a power of five the public interest, the media will work for the state. They will do so willingly, knowing that much of the power they had to expose government corruption and malfeasance has been taken from them. Cwele claims the new bill won’t lead to state censorship, but by refusing to acknowledge the existence of a public interest in leaking information, this bill invites abuse.
The most immediate stun under which we South Africans are reeling is without question the most important: the result of such a bill on the press, which means all forms by which we are kept informed – print on paper, electronic or visual – of what affects the conduct of our lives, our right to live as we decide so long as we do not distort, damage or constrict the lives of others.Freedom of expression. That’s the title to our rights this bill strikes out as a danger to the state in that we have the right to know and think: the right of the human condition
Nhlanhla Nene confirmed on Sunday that he was taking legal advice – but would not elaborate on who the envisioned respondents in a possible lawsuit could be.
According to a recent Sapa report, the SABC had apologised to Nene, and were also investigating how the clip, which shows Nene falling behind the desk during an interview on an SABC2 programme after his chair broke, managed to make the rounds outside the company.
How would this incident have played out if the Protection of State Information had already been law? Would the government accuse SABC of “information peddling,” of leaking footage of a finance minister in a moment of weakness to undermine the stability of the rand ? When ill-defined legal standards can be twisted to alleviate political pressure, give force to personal vendettas, or allow government officials to obfuscate their misdeeds, they will be.
This bill will absolutely have a chilling effect on free speech, as journalists and media entities try to work to keep the government accountable while a quarter-century prison sentence hangs over their heads. Even if very few people ever go to prison, the threat of imprisonment alone can be used by unscrupulous government officials to censor reporting critical to their actions or to suppress evidence of wrong doing.
Recently Mail & Guardian, a South African newspaper was forced to censor its front page story following legal threats from President Zuma’s spokesperson, Mac Majaraj. The story pertained to an arms deal that Majaraj took part in in the 1990’s. Majaraj claimed the information had been obtained “in camera” — inside of a judge’s chambers, apart from the official record — and threatened the publishers with legal action . Recently the government declined to reopen corruption charges against Majaraj in light of a recently discovered “consultancy agreement” that allowed him to take bribes. Bank records indicate Majaraj was taking kickbacks from a French company, Thales, for a driver’s license technology contract while he was Minister of Transport.