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In a modern democracy, how can state officials strike a just balance between protecting national security interests and preserving freedom of the press? On Tuesday, South Africa became the latest state to grapple with this issue in the international spotlight after the Protection of State Information Bill passed the lower house of the national congress by a vote of 229 to 107. Heavily promoted by the dominant African National Congress (ANC) party, the bill grants selected state agencies the power to classify documents as “secret” if doing so will serve South Africa’s national interests. Any citizens and journalists found in possession of information deemed a “state secret” will be treated as foreign spies, and could receive a jail sentence of up to 25 years if the information is disclosed.
As in countless similar debates on national secrecy issues, both sides claim to act with South Africa’s long-term security concerns in mind. For the backers of the Protection of State Information Bill, “national security” primarily involves keeping state secrets from outsiders. The bill’s ANC supporters have emphasized its superiority to the 1982 Protection of Information Act, an apartheid-era law that did little to deter activities like the Cabinet-sanctioned destruction of classified state documents in the early 1990s. By punishing those who collect and disseminate classified information, the bill would more effectively counter what Minister of State Security Siyabongo Cwele has called an “increasing threat of espionage.” In response to pressure from the opposition, the approved draft allows only the state’s intelligence and security agencies to classify information as secret, and provides for the establishment of a committee to closely monitor the classification process. Such safeguards are intended to prevent the abuse of classification powers by the agencies, as well as by any outside parties that may pressure agency officials to bury undesirable information under a “secret” heading.
For the bill’s opponents, however, “national security” also involves keeping citizens apprised of government wrongdoing so that they can more effectively hold their elected officials accountable. Faced with the prospect of significant jail time, investigative journalists may be less likely to pursue stories that involve “classified” components, allowing more instances of state corruption to go unreported or receive coverage only at a superficial level. Despite a series of amendments made to the initial draft, the bill currently contains no public interest clause, and fails to provide adequate protection for whistleblowers in the eyes of the legislation’s detractors.
The ANC’s abuse-safeguard amendments haven’t exactly served as a point of comfort, either. During a press conference on Tuesday, Minister Cwele commented that, “the foreign spies continue to steal our sensitive information in order to advantage their nations at the expense of advancement of South Africa and her people.” Rather than limiting the concept of “national interest” to intelligence and military concerns, these remarks reflect a more sweeping definition that could apply to such areas as state economic strategies and, in critics’ worst-case scenario, the strength and reputation of individual rulers. If preserving officials’ political health is considered a national security concern, documents illustrating human rights abuses and other forms of government corruption could receive a secret classification without interference from the monitoring committee.
Opposition parties have vowed to work on an alternate draft of the Protection of State Information Bill for consideration by the National Council of Provinces, the government’s upper legislative chamber. The bill’s critics have also promised to challenge it in the nation’s constitutional court should the legislation be passed by the Council and signed into law by President Zuma. Meanwhile, protests have already begun in front of ANC offices in Johannesburg and Cape Town, and notable figures like Archbishop Desmond Tutu are speaking up in defense of press freedoms. As South Africa struggles with competing definitions of “national security” and “national interest,” its democratic counterparts around the world can empathize with exactly how difficult such a reconciliation can be...and how frustrating it is to realize that the tension between security and free speech is never really resolved.