The Promotion of Access to and Protection of National Security Information in South Africa

URL:

Abstract:

The Promotion of Access to and Protection of National Security Information in South Africa Jonathan Klaaren Professor, School of Law, Co-Director of the Research Unit on Law and Administration, University of the Witwatersrand Visiting Scholar, Center for the Study of Law and Society, University of California (Berkeley) klaarenje@law.wits.ac.za 5 May 2003, Washington {DC} Introduction: The Promotion and the Protection of Information 1 The two South African statutes most relevant to national security information have similar titles but essentially approach the issue from opposite perspectives. The Promotion of Access to Information Act and the Protection of Information Act also come from two different eras in South Africa national history. South Africa’s constitutional right of access to information is implemented through the Promotion of Access to Information Act 2 of 2000 ({AIA}). This legislation gives effect to and is itself mandated by the post-apartheid Constitution, generally acknowledged as global progressive. In one of the legislation’s innovations, the {AIA} extends the ambit of right to information to the private sector. The {AIA} was enacted in 2000 and has fully taken effect, although some of its compliance deadlines have been extended. 2 The national security ground of refusal to access to information is contained in section 41 of the {AIA}. 3 That section protects information the disclosure of which could reasonably be expected to cause prejudice to defence, security, or international relations. It also protects information required to be held in confidence due to an international agreement or supplied by another state in confidence. The ground is discretionary and may be waived. In the South African transition, an early and The first several sections of this chapter draw on J Klaaren ‘National Information Insecurity? Constitutional Issues Regarding Protection and Disclosure of Information by Public Officials’ in (2002) 119 South African Law Journal 721-732. See generally, I Currie and J Klaaren The Promotion of Access to Information Act Commentary ({SiberInk}, 2002). Current developments regarding the {AIA} are available at the {RULA} website at www.law.wits.ac.za/rula. See I Currie and J Klaaren The Promotion of Access to Information Act Commentary ({SiberInk}, 2002) 173-177 for a more detailed examination of section 41.