WEBINAR 4: MIDDLE EAST & AFRICA - Democratic Backsliding in South Africa: The Case of the “Secrecy Bill”
Juha TUOVINEN
16 November 2020
It seems clear that not everything is ok with South Africa’s democracy but pointing out exactly what is wrong is much more difficult. A sweeping overview of the main ills besetting country might include: First, and maybe foremost, the country is a one party democracy and is beset by a number of the pathologies attendant to them – such as the blurring of the lines between party, in this case the ruling African National Congress (ANC), and the state, the lack of oversight of the executive by Parliament etc. The style of politics has also take a disconcerting turn with Jacob Zuma and Julius Malema in particular. Then there are the various intra-ANC battles which spill over into various abuses of the state. There is also rampant corruption and “state capture” which result in state resources being looted for various purposes on a huge scale. And these are just the structural issues facing the constitutional system.
From another perspective, however, much remains intact in South Africa. The Constitutional text remains untouched where it matters (with the limited potential exception of Section 25 on land expropriation), despite the ANC having had a sufficient majority to amend it. Many of the state institutions remain independent; especially importantly, the judiciary retains its independence throughout the legal system and there have been no efforts to capture either the higher or the lower courts. The media is considered to be independent. Political opposition parties are as lively as ever. And maybe most importantly, civil society is well-organized, active and able to bring a host of victorious legal challenges to odious government measures.
The Protection of State Information Bill (“Secrecy Bill” or “Bill”) sits in between these developments. The Bill seeks to replace the apartheid era Protection of Information Act, 1982 (“1982 Act”) with a new system for classifying, protecting and disseminating state information. The Secrecy Bill, as it has been nicknamed, is a necessary revision of the clearly unconstitutional 1982 Act but it has also been called the greatest threat to democracy in South Africa.
This threat operates on multiple levels. In the first place, there is the threat that excessive secrecy may bring to those who wish to hide their illicit activities. But the Secrecy Bill is especially dangerous in being one of very few institutional steps, albeit not the only one, towards the erosion of democratic governance in South Africa and thus threatening the systemic integrity of the constitutional scheme. The threat posed by the Bill is, then, not just what it could do to the transparency of government in South Africa, it is the way in which that abuse would be institutionalized.
On the bright side, the story of the Secrecy Bill also displays some perhaps surprising areas of resilience within the legislative process as during the debates on the Bill in the ad hoc committee, the Bill was improved. Secondly, the President did not sign the Bill into law and, in fact, most recently, the current President has sent the Bill back to the National Assembly over concerns of its constitutionality.
Background: The Constitution, Open Democracy and the Genesis of the Bill
For the genesis of the current secrecy Bill we need to look back as far back as 2007 at the first effort to replace the apartheid-era Protection of Information Act. The apartheid state was shrouded in secrecy, meticulously concealing records of the atrocities it was committing, whether these were committed at the time legally or illegally. The Secret Police, in particular, engaged extensively in torture and other human rights atrocities in its fight against what they perceived as a terrorist threat, keeping meticulous but secret records which were largely later destroyed before the end of apartheid. But even beyond these gross violations of human rights, the apartheid state routinely made most decisions in secret without the potential scrutiny of the public.
The post-apartheid democratic constitutional dispensation sought to turn this system of secrecy and authority completely around by embracing a culture of justification, open democracy and the right to access of information. The enactment of the Promotion of Access to Information Act, 2000 (PAIA) creates a system giving access to information held by the state and private bodies. However, some parts of the old legislative scheme remain in place, including the Protection of State Information Act, 1982. There is a very broad consensus that that Act is overbroad and cumbersome, requiring the classification of large swathes of information, and also heightening the potential of abuse.
The Draft Bill and Parliamentary Debates
The first effort to replace the 1982 came with a Draft Bill that was tabled in Parliament in 2008. The 2008 Bill was heavily criticized by civil society, investigative journalists and a ministerial review commission – for many of the same reasons as the 2010 Bill two years later such as the heavy minimum sentences for leaking information which made the Bill rather draconian – and it was withdrawn. The Bill was then redrafted somewhat and was returned to Parliament in 2010, where it ended up spending several years being debated in the ad hoc committee set up to debate it. In June 2020, the current President returned the Bill to Parliament over concerns of the Bill’s constitutionality.
The debates on the Bill in late July 2020 involved two days of hearings of about 15 civil society organizations and lengthy – sometimes cooperative, sometimes acrimonious – debates between opposition politicians and great a number of interventions by lawyers drafting new drafts working for the State Law Advisor (a time table and accounts of the debates are available here). Beginning with the public consultations, a great number of civil society organizations levelled a great number of criticisms against the various provisions of the Bill. To list the central ones: 1) the scope of application to commercial information, 2) the broad definitions of national interest and national security, 3) the overriding of PAIA, 4) the criminal offences contained in the Bill, 5) the high minimum sentences attached to offences and 6) the lack of a public interest defense to the criminal offenses in the Bill.
During the public submissions and ad hoc committee debates, these and many other topics were debated at length. On some of the clauses the government conceded that the provision could protect transparency better without compromising state security. For example, the concept of “national interest” as a basis of classification was removed entirely from the Bill after it was pointed out, by opposition politicians and civil society members that this made the Bill overbroad, capturing almost anything imaginable. The Minister responded with a rather bizarrely argued memo setting out the law that mostly resembled the freedom of expression case law of the European Court of Human Rights, without any reference to domestic constitutional law, but ultimately conceded that “national security” would be the organizing concept for Bill. What the definition of “national security” should be was then put off until the very end of the drafting process when the ANC forced through a relatively broad definition against the opposition’s narrower definitions.
Another important question was about harmonizing the Secrecy Bill with PAIA. This question was not apparent immediately but when it arose it took up almost a month of the committee’s time. The issue is that PAIA is intended to create a system of access to official records, which possibly clashes with the classification and de-classification scheme of the Secrecy Act. The debates consisted mostly of figuring out the issues, the question of which Act should prevail in the case of conflict, and how to streamline the process of releasing information. Ultimately, a solution was found which kept the access to information framework within PAIA and tailored the provisions of the Secrecy Bill to match that framework.
Finally, as regards the offences in the Bill and in particular the public interest defense, which was probably the most controversial issue in the public’s eye. The Bill contained a number of offences related to disclosing classified information and some long sentences, which were adjusted down during the debates, however the issue of whether a defendant could raise the public interest in the disclosure as a defense. The main argument in favor of such a defense was advanced repeatedly by both civil society and opposition MPs was the potential need of journalists to publish classified information and many examples of such events were presented over the course of the hearings.
The counter-arguments varied. One line of argument was that the law of the UK did not include a public interest defense. Another line was that the Bill included a mechanism for declassifying information which could be followed by anyone wishing to publish this information. A third argument related to whether softer form of the defense could be adopted where information was already in the public domain and could then be published but this was also rejected.
The result of the debates was an improved Bill that many were nevertheless not satisfied with and civil society organized large demonstrations to protest against the remaining draconian features of the Bill, especially the public interest clause. There is some room, in my view, for optimism for the view that the debates are able to improve rights-protecting features of an Act of Parliament, even if the ANC can push a clearly flawed piece of legislation through the process.
The Presidential “Veto”
All in all, the result was a Bill that, in the words of one opposition MP, was “improved but still flawed”. The Bill was passed by the National Assembly, albeit with some drama as one ANC MP, Ben Turok, refused to vote in favor of it, defying the whip for the first time in the history of the ANC. The National Council of Provinces made some small modifications and ultimately the Bill ended up before the President for his signature.
After sending the Bill back to the NA for some minor corrections. Until this day, the President has not signed the Bill into law. This is highly unusual (Tongoane v. National Minister for Agriculture and Land Affairs and Others [2010] ZACC 10) being the only other example I can think of). While we have no official statement to back up this assumption it would seem that the President’s veto was motivated by the significant pressure by civil society and possibly coupled with the potential for a loss in the Constitutional Court. In this connection, then President Jacob Zuma had a relatively poor track record in the Constitutional Court and especially after his loss in the Glenister II case in 2011, in which the Court invalidated legislation affecting the independence of a key anti-corruption agency (the National Prosecuting Authority (NPA)) (Glenister v. President [2011] ZACC 6) seemed to believe that the Court was prejudiced against him.
In this sense, it must be noted with, not a small hint of irony, that the classification of state information remains governed by the 1982 Act. So, even if the President was acting out of respect for civil society or fear of the Constitutional Court, whatever nefarious purposes the Act could have been used for, the 1982 Act will certainly suffice.
So, What about Democratic Backsliding?
What does this picture tell us about democratic backsliding in South Africa? In the first place, it seems appropriate to consider the Secrecy Bill to be one of the few actual legal instruments that threaten to undermine the constitutional order. There are other ones, such as the reassignment of the specialized corruption fighting unit from the police service to the police, in order to exercise greater political control over it, referred to above (Glenister II). However, by and large most other sources of constitutional backsliding – such as corruption – tend to operate either within the existing legal framework or simply break it, sometimes with, but often without, impunity.
Secondly, the purpose of dismantling appears to be hiding corruption or other improper actions such as the use of the intelligence services for inappropriate purposes. Compared with leaders like Hungarian Prime Minister Viktor Orbán, who dismantle the constitution to stay in power – that is, to expand executive control over the state and also over other aspects of society – this is not what motivates capture of state institutions. This may well be because for now the ANC does not have much to fear by way of losing electoral dominance, so any efforts to undermine state institutions would be directed where it stands to lose, for example through criminal charges, by negative press reports or by a competing ANC faction gaining the upper hand.
This is also the reason the Secrecy Bill is so dangerous. It represents a step towards institutionalizing the pathologies of a dominant party democracy and giving them a legal façade through which to operate. And as we know from the Hungarian example in particular that a legal framework through which power is entrenched becomes very difficult to undo. For now, we are not yet there and the Bill remains a Bill and hopefully the upcoming revision by the National Assembly will set the Bill on a different course.
Juha Tuovinen is a constitutional lawyer who has held a postdoctoral research fellowship at the Central European Univeristy and received his PhD from the European University Institute. Before the EUI, he spent two years as a researcher at the South African Institute for Advanced Constitutional, Public and International Law (SAIFAC) at the University of Johannesburg and as a foreign law clerk at the Constitutional Court of South Africa. Before that he studied legal theory, public international law and law in Belgium, the Netherlands and the UK.