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December 11, 2010

WikiLeaks Concern for South African Freedom of Information Activists

by Darren Taylor

They’re worried controversy will lead to state severely limiting access to information

As WikiLeaks continues to release heaps of United States government secrets, freedom of information advocates in South Africa are concerned the controversy will spur the country’s parliament on to pass a controversial “Secrecy Bill” into law.

“We’re concerned that the issues around WikiLeaks may drive the Ministry (of State Security) to suggest that even more information should be made classified,” says Alison Tilley, executive director of South Africa’s Open Democracy Advice Center.

ODAC’s website says it strives to “foster a culture of corporate and government accountability,” and seeks to achieve this “through realizing the (public’s) right to know.”

Earlier this year, South Africa’s ruling African National Congress (ANC) party introduced the Protection of Information Bill in parliament, and proposed the establishment of a “media tribunal” to “regulate” the country’s print media.

The moves resulted in nationwide protests from human rights and freedom of expression groups, as well as the public, who remain concerned that they’re the first steps towards an ANC clampdown on media freedom and a new age of censorship in South Africa.

In recent years, the country’s media has exposed several scandals implicating top ANC officials – including President Jacob Zuma – and businesspeople close to the ruling party, in a variety of crimes - including massive corruption.

The ANC denies it wants to curb media freedom, insisting its bill merely seeks to protect state secrets - the publication of which it insists could endanger South Africa’s security.

But legal, constitutional and access to information experts say the bill’s definition of a “state secret” is so broad that it could allow the ANC to prevent the media from reporting on a wide range of issues embarrassing to the government – including corruption and even personal scandals.

‘Criminalize the chain’

According to the bill, the media would not be able to publish a story based on a “secret” document, even one that shows that a government minister has stolen taxpayers’ money. Instead, the person who leaked the document would be punished: the possession of such a document is a crime that could result in prison terms of up to five years – for the journalist and the whistle-blower who leaked the document.

Tilley says if the South African bill becomes law, a lot of people could end up in jail for possessing information such as that published by WikiLeaks.

“Perhaps I went onto the website and downloaded information from the WikiLeaks website – that would make me liable; if I sent it to a colleague – that would make my colleague liable; if my colleague sent it to a newspaper – that would make the journalist liable. And presumably once the journalist publishes it and people buy and read the paper, it would make them liable too,” the lawyer explains.

“The principle that we want to introduce in terms of the bill is that the only person who is liable is the person who’s actually professionally responsible for keeping that secret - that is, the member of the security agency, the person in national intelligence,” she maintains.

Thus, according to ODAC, Julian Assange, WikiLeaks founder, should not be charged with any crime linked to the publishing of the US government secrets. Only his alleged source – US intelligence analyst Bradley Manning – should be held responsible for the leak.

“Once the information is leaked, we think it’s completely wrong to try and criminalize everyone down the chain,” Tilley tells VOA. “That’s what the (South African) legislation does as it’s currently tabled.”

No ‘public interest defense’

Experts who’ve analyzed the South African bill say the fact that it doesn’t contain a “public interest defense” holds extremely serious consequences. This means that whistle-blowers and reporters can’t argue in court that the “secret” information they’ve revealed is in the public interest – even if such information shows evidence of damage to the environment or theft of taxpayers’ money, for examples.

“The Secrecy Bill says that in fact it doesn’t matter whether information’s in the public interest or not, it doesn’t matter what the (confidential) documents reveal - it could be anything up to genocide and you still would be criminally liable if you made the documents available in the public interest,” says Tilley.

Activists in South Africa argue that the South African government’s main motivation in drawing up the Bill is to prevent certain politician’s crimes from being exposed.

As few secrets as possible

Tilley says the instinct of security and intelligence agencies across the globe, including in South Africa and the US, is to try to keep increasing amounts of information secret. This is dangerous, she says … as Washington has discovered via WikiLeaks.

“We think that would be a very wrong analysis of what WikiLeaks should mean to security agencies,” she stresses. “We think what it means is that you must narrow your focus, and concentrate only on that information which it is absolutely essential that you keep secret because lives are at risk. Then you secure that information as completely as you can.”

ODAC’s stance is that governments should keep as few secrets as possible, and strive for “openness and transparency.”

“We think it improves decision-making; we think it allows people to participate in government more effectively; it allows them to advocate on issues more effectively; it allows better decisions around resources,” says Tilley. “The more transparency, the better the decisions that are made – both by people in power and by people who seek power.”

She adds, “The instinct of security agencies to try to keep more and more information classified simply means that there are more people in the tent. And the more people there are in the tent, the more difficult it is to keep information secure, and the more likely it is that there’s going to be a security risk, there’s going to be a leak, and somebody’s going to let slip the information.”

Abuse of secrecy clause

Tilley and ODAC are not suggesting that governments don’t have a right to keep certain information hidden from the public.

She says, “Governments do have secrets that they should legitimately keep. They keep those secrets in the interests of their citizens. They generally relate only to narrow security issues. If we have undercover policemen, for example, working in gangs to try and end gang violence or trying to end organized crime, we would accept that those identities need to be kept secret. This would benefit the public, in that criminal activity would be stopped.”

But Tilley says the “problem” is that once governments are entitled to keep secrets entirely at the state’s discretion “it seems to know no end” and is open to great abuse.

“(In South Africa), we have documents that go in front of local government (municipalities) that are automatically marked ‘secret,’ simply because they’re being dealt with by an executive committee in local government. That’s clearly wrong,” she says.

Tilley says in South Africa, officials – using the excuse that certain information should be kept secret in the interests of the state – have tried to keep tender documents secret.

“We’ve had people tell the Public Protector, she’s not entitled to documents because they’re classified so she can’t investigate corruption,” she says. “That’s precisely the misuse of classification which is problematic, and which we think will be probable – given the scope of the Secrecy Bill.”

South Africa’s Public Protector is appointed by the president to investigate complaints from the public against government agencies or officials.

Tilley hopes South Africa’s government, as it continues to try to limit access to information, learns some lessons from the leaking of more than 250,000 US government secrets to WikiLeaks.

“It shows that it’s very difficult to keep secrets – whatever you think about whether they should or shouldn’t be kept. The fact is that America, one of the wealthiest countries in the world, with a very extensive network of specialists trying to keep secrets secret, has found that it can’t be done.”