South Africa’s secrecy bill

In November 2011, South Africa’s lower house approved the protection of state information bill – legislation, which if passed can sentence those found guilty to up to 25 years’ imprisonment, writes Maryam Omidi.

The case

In November 2011, South Africa’s lower house approved the protection of state information bill – legislation, which if passed by the upper house and ratified by the president, will give blanket protection to state secrets. Under the law, unauthorised individuals disclosing classified documents face prison sentences of up to five years; those failing to report possession of classified information (even if acquired before the bill comes into force) face a maximum of five years;  those harbouring or concealing someone as a confidential source will be given up to 10 years; while those found guilty of disclosing “top secret” information with intent to benefit a foreign power face up to 25 years’ imprisonment.

The bill has united trade unionists, journalists, activists, lawyers and writers from across society who have among other things called for the inclusion of a public interest defence clause. Llewellyn Landers, an MP from the ruling African National Congress, the party that proposed the bill, said a public interest defence clause “would do irrevocable harm to the state and the people of South Africa if a court should find that a whistleblower was found to have given information not out of public interest but out of maliciousness”. Detractors have said the bill is intended to suppress investigative journalism and exposés about government corruption. South African PEN and PEN International released a statement, calling the bill “a retreat towards the secrecy that characterised South Africa before its democratic transition”.

Author opinion

The tough sentences will no doubt deter whistleblowers from leaking, and journalists from publishing, classified information. Protection for both whistleblowers and journalists is essential in a democracy to ensure government and corporate accountability. A private or public sector employee should be able to expose wrongdoing, mismanagement or corruption at their workplace if it is in the public interest. Likewise, a journalist should be able to report on classified material if it is passed to them, and is in the public interest. This is of particular concern because South Africa is considered as a bastion of democracy and free speech in the continent. As Andrew Feinstein, a former ANC MP, has said: "If that comparison no longer holds, it lets a lot of other countries off the hook in many ways."

- Maryam Omidi

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Free Speech Debate is a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford.

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