South African Lawmakers Adopt Secrets Bill

Sept. 17, 2011: People protest against the Secrets Bill in Cape Town, South Africa. South Africa's parliament prepared Monday, Nov. 21, 2011 for a vote the following day on a state secrets bill that critics within and outside the governing party said would smother freedom of expression and make it harder to fight corruption. Sign at right reads "Give Us Our Rights."

JOHANNESBURG – South African lawmakers overwhelmingly approved a bill Tuesday to protect state secrets that critics say will stifle expression.

Tuesday's 259-41 vote with 32 abstentions came after months of fierce debate.

A range of opposition groups say they will challenge the measure at the Constitutional Court if it becomes law.

The bill's critics included two Nobel prizewinners: peace laureate Retired Archbishop Desmond Tutu and literature laureate Nadine Gordimer.

The office of Nelson Mandela, South Africa's first post-apartheid president and another Nobel peace laureate, also has expressed reservations about the bill.

Others who objected included newspaper editors, prominent writers, church groups, freedom of expression lobbyists, business leaders and others.

The governing African National Congress, which presented the bill, says South Africa needed to update apartheid-era legislation defining secrets and setting out punishments for divulging them.

The approval had been expected because the ANC holds a majority of parliament's seats, and party discipline is rarely violated. Parliament's upper house could ask for revisions, but that rarely happens. President Jacob Zuma will have to sign the bill to make it law, and while his legal advisers may ask for revisions, he was expected to do so.

Critics donned black and staged protests at the ANC's downtown Johannesburg headquarters during morning rush hour Tuesday, saying the bill's weaknesses include its lack of a provision allowing those who break the law to avoid going to jail if they could argue they acted in the public interest.

Activists fear the adoption of the measure in a country known for one of the continent's freest and most open constitutions could influence other governments in the region.

In a statement late Monday, Tutu said it is "insulting to all South Africans to be asked to stomach legislation that could be used to outlaw whistle-blowing and investigative journalism ... and that makes the state answerable only to the state."

Tutu won a Nobel Peace Prize for his nonviolent opposition to white rule. In more recent years, he has been a sharp critic of ANC moves he sees as undermining rule of law and weakening South Africa's fledgling democracy.

The ANC said South Africa needs to update apartheid-era secrets legislation. The party bristles at suggestions from critics that its proposal would take the country back to the days when white racist officials banned newspapers and punished whistle blowers to stifle criticism.

Prominent ANC members also have opposed the bill, among them a former state security minister. The office of Nelson Mandela, South Africa's first post-apartheid president, also has expressed reservations about the bill. Newspaper editors, prominent writers led by Nobel laureate Nadine Gordimer, church groups, freedom of expression lobbyists, business leaders and others have lobbied against it.

Pretoria-based freelance journalist Tanya de Vente-Bijker wore black in response to calls from activists to observe "Black Tuesday" to protest the bill. She said she hoped the protest would lead South Africans who don't work in the media to investigate how their rights to information and to speak out if they see wrongdoing might be affected.

The ANC bill says "information that is accessible to all is the basis of a transparent, open and democratic society," but says secrecy is sometimes necessary to "save lives, to enhance and to protect the freedom and security of persons, to bring criminals to justice, to protect the national security and to engage in effective government and diplomacy."

While the bill makes it a crime to divulge state secrets, it also makes it a crime for an official to withhold information to conceal wrongdoing or incompetence, or merely to avoid embarrassment.

In June, the ANC backed down on some of its original proposals, removing mandatory prison sentences for possessing and publishing secrets -- though reporters and others could still be jailed for publishing information that officials want kept secret. The ANC also agreed to limit the power to classify secrets to state security agencies, and proposed that an independent official review appeals of state security rulings on classified information.

At times, the rhetoric about the bill appears to have less to do with its merits than with a distrust of government on one side after a series of corruption scandals involving high-ranking officials, including the national police chief; and complaints from politicians of witch hunts by a biased media.

In a speech to parliament last week, State Security Minister Siyabonga Cwele even raised the possibility that demonstrators who have held peaceful marches to rally opposition to the bill were somehow being used by South Africa's enemies.

The secrets bill is separate from another ANC proposal that has raised concerns -- the possible creation of a tribunal that could discipline journalists, with powers to punish that have not yet been spelled out.

Relations between the ANC and the media long have been tense. Last week one of the country's most prominent newspapers, the Mail & Guardian, said it had been unable to publish details about corruption allegations against Mac Maharaj, who was imprisoned on Robben Island alongside Mandela for his anti-apartheid activities and who recently took on the job of presidential spokesman, because of threats of criminal prosecution. Maharaj later announced he was asking police to investigate whether the paper and its journalists had broken the law in their reporting.