The Protection of State Information Bill (or POSI Bill or Secrecy Bill) is a draft law in South Africa that deals with the classification and protection of state information. Some people call it the Secrecy Bill, POSIB or the POSI Bill. We prefer the acronym POSI Bill. It will repeal the Protection of Information Act, 1982 (Act No. 84 of 1982).

POSI is about national security and classified state information. Sometimes, the state needs to be able to restrict the general public’s access to some information. For example, in the interests of national security. But we must monitor this carefully because democracies and free societies rely on the free flow of information. After all – information is power. And those in power can abuse classified information laws to their advantage.

You should not confuse it with the Protection of Personal Information Act (POPIA), which is South Africa’s data protection law. On the one hand, you have the POSI Bill and POPIA, and on the other, you have the Promotion of Access to Information Act (PAIA), South Africa’s freedom of information law. They are meant to balance each other.

The latest version of the Protection of State Information Bill

There have been many versions of the Bill. The most recent version is B6H and you can download a copy of POSI.

What does it provide for?

  • The protection of sensitive state information.
  • A system of classification, reclassification, and declassification of state information.
  • The protection of certain valuable state information against alteration, destruction, loss or unlawful disclosure.
  • The way the state may protect its information.

What is the status of the Protection of State Information Bill or POSI Bill?

Parliament has passed the POSI Bill and it sat on the President’s desk for many years. On 2 June 2020, the President asked the National Assembly of the South African Parliament to reconsider it. This is good news because there are serious questions over the constitutionality of the current version of the POSI Bill. Importantly, it shows a commitment to transparency.

Is the Secrecy Bill constitutional?

Many argue that it is unconstitutional for a variety of reasons.

  • It restricts the right to freedom of expression, which includes freedom of the press and other media. (Section 16 of the Constitution)
  • It conflicts with the right of access to any information (PAIA) the state holds which the Constitution requires for the exercise of rights. (Section 32)
  • It limits the freedom of the media and everyone else to access or receive and impart information and prohibits people from accessing certain information held by the state.
  • Some definitions are too broad and fail to adequately guide officials tasked with making decisions.
  • The public-interest defence is deficient, including criminal liability on the part of whistleblowers who may have documents that the head of an organ of state may wrongly classify to cover up corruption or hide illegalities or maladministration.
  • The lack of a public-interest defence will create an unjustifiable, chilling effect on the freedom of expression and limitations in this regard could be open to legal challenge on the basis that the limitations are arbitrary and irrational.