If new official secrets legislation had been on the statute books, the
Mail & Guardian’s award-winning articles about police National
Commissioner Jackie Selebi could have been illegal — and M&G
reporters could have faced lengthy jail terms, writes Adriaan Basson in the Mail & Guardian.

The Protection of Information Bill was published for comment by Intelligence Minister Ronnie Kasrils last week. A specially constituted parliamentary committee will process it and hold public hearings. Kasrils hopes to have it enacted by the end of the year.

The preamble to the Bill, which is to replace the draconian apartheid Protection of Information Act of 1982, states that its aim is to “promote the free flow of information within an open and democratic society without compromising the security of the Republic”.

Provisions include the preservation of valuable state information and the automatic declassification of all formerly secret information older than 20 years, unless it is specifically reclassified.

Uniquely, it also criminalises the abuse of classification by state officials to conceal breaches of the law, inefficiency or embarrassment.

The Freedom of Expression Institute (FXI) slammed the Bill this week, saying it smacked of “an attempt to eliminate genuine criticism and to entrench the powers of the executive”. Kasrils, however, writes in commentary appearing in the M&G on April 3 that “government has no interest in hampering the work of investigative journalists”.

Red flags
Red flags for reporters include a prohibition imposed by the Bill on disclosing classified records and even a duty to return them to the state. There is no specific exemption for reporters who use the records to expose corruption or the abuse of power. Failure to comply carries a jail term of up to five years.

Heads of state bodies or their delegated officials will have the power to classify documents and other records as “confidential”, “secret” or “top secret”.

Information not in physical form can be “designated” to prohibit disclosure.
Investigative reporters could arguably find themselves negotiating a perpetual minefield under a section dealing with “hostile activity offences”, which carry penalties of up to 25 years in jail.

These offences criminalise the collection and disclosure of “sensitive information” — a category more loosely defined than “classified information” — if the intention is to “prejudice the state”.

Information is regarded as “sensitive” if it endangers the “national interest”, which encompasses not only “the survival and security of the state” and the “pursuit of justice [and] democracy”, but also ideologically loaded values such as growth and free trade.

Explicitly included among matters in the national interest are “defence and security plans”, “significant political and economic relations with international organisations and foreign governments” and even “details of criminal investigations”.

This means that newspapers and journalists reporting on matters such as the Scorpions’ investigation of Selebi or on the arms deal could conceivably be prosecuted if authorities decide there was an intention to prejudice the state.

Click here to read the full report, posted on M&G Online.