Apartheid South Africa’s official secrets are finally set to be made public, although paid “impimpis” who betrayed their liberation struggle comrades will still be protected and not “named and shamed”.
This is in line with a far-reaching new bill – on the cards for at least eight years – which protects state information from destruction and disclosure, and moves away from the knee-jerk reaction to classifying everything in favour of a more open and transparent approach.
The Protection of Information Bill was gazetted last week by Intelligence Minister Ronnie Kasrils, and will be tabled in Parliament soon.
The bill allows for automatic declassification of apartheid-era state information and classified information older than 20 years, opening a treasure trove of information about the past.
It sets out a coherent statutory framework for the classification and declassification of all state information, as well as mechanisms to review and appeal such decisions.
Significantly, the proposed legislation also targets private intelligence actors, but does not outlaw them as threatened by former intelligence minister Lindiwe Sisulu.
Instead of being banned, they will only be prosecuted and sentenced to five years in jail if they act unlawfully, such as knowingly providing false or fabricated information to a state intelligence structure.
Last month, Safety and Security Minister Charles Nqakula told reporters the bill aimed to fill the existing legal gap in relation to threats faced by the state in the course of intelligence-gathering by “unauthorised entities”.
Referring to the controversial Special Browse Mole Report, he said of particular concern was the extent to which “information peddlers” had attempted to undermine statutory national intelligence structures by disseminating false information.
It also covers the so-called hoax e-mails in which there were attempts to discredit senior ANC leaders, as well as the infamous Meiring report to then-president Nelson Mandela that ended SANDF chief George Meiring’s military career.
A special parliamentary ad hoc committee – which will include members of the joint standing committee on intelligence – will be established to process the bill, Kasrils told Weekend Argus.
Acknowledging the sensitivities around the proposed law, Kasrils tried to allay concerns that it would crack down on, rather than aid, the public’s constitutional right to government information, or that investigative journalists and academic researchers would be prejudiced.
Nor was it aimed at covering up state corruption or incompetence, Kasrils said.
He acknowledged there would be “a pressure cooker approach” to process the draft law, but that “we won’t cut corners”, given Parliament’s shorter programme as parties gear up for next year’s elections.
He hoped it would be on the statute books by year end and urged journalists, researchers and others to engage with the ad hoc parliamentary committee, which will hold public hearings on the bill.
Institute for Security Studies researcher Lauren Hutton said the bill made “all the right noises”, although there were questions about capacity and implementation, as well as financial implications.
Among the bill’s strong points was the section dealing with the principles of classification, Hutton said.
Classified information, for example, “may not under any circumstances be used to conceal an unlawful act or omission, incompetence, inefficiency or administrative error” or “prevent embarrassment to a person, organisation, or organ of state or agency”.
The bill says sensitive information must be protected from disclosure to prevent the national interest from being endangered.
The Intelligence Ministry said there was sometimes a legitimate need for the government to restrict information in the national interest.
“However, you can’t simply cite national interest to restrict access to information,” a ministry official said.
“If you want to restrict access, you have to classify or designate in terms of the criteria set out in the bill. You will have to show demonstrable harm.”
In fact, the bill ensured that it would be an offence liable to imprisonment of up to three years to classify improperly.
Unlawful possession or dissemination of classified information is liable to a sentence not exceeding five years, which is lighter than the old act.
The media, for example, will not be allowed to report on classified information, and if they obtain this illegally, or through sources, would be obliged to return it, the official said, adding that this was in line with international experience.
The ministry official said government sources and apartheid-era spies would not be outed under the bill.
The bill overhauls the statutory crime of espionage, ensuring that the presumption is no longer on the accused to prove innocence and sets a penalty of 25 years in jail if convicted.
It creates other offences, including “hostile activities” and – bizarrely – requires spies operating in South Africa to register.