1. Bonke abantu banelungelo lokuthetha ngokukhululekileyo besebenzisa amajelo enkcazelo (digital media) ngaphandle koloyiko lwempindezelo okanye ukutshutshiswa.

a. Abantu abasebenzisa amajelo enkcazelo inkululeko yabo epheleleyo yokuthetha ikhuselekile ngaphantsi kwemithetho nemigaqo yamazwe ngamazwe. 

b. Oorhulumente abafanelanga batshutshise okanye baziphindezelele kubantu abagqithisa inkcazelo, izimvo, okanye iingcamango zabo besebenzisa amajelo enkcazelo.

c. Oorhulumente bafanele babhinq’ omfutshane ekukhuseleni inkululeko yokuthetha kumajelo enkcazelo ngokumisela nangokunyanzelisa imithetho nemigaqo efanelekileyo.

 

2. Bonke abantu banelungelo lokufuna nokufumana inkcazelo kumajelo enkcazelo.

a. Oorhulumente abafanelanga bayibeke esweni, bayibekele imiqathango, okanye balawule into ebhalwa kumajelo enkcazelo, kuquka umbandela ovela kwimithombo yasekuhlaleni okanye eyamanye amazwe.

b. Kwiimeko ezikhethekileyo, nayiphi na imiqathango ebekelwe okubhalwa kumajelo enkcazelo ifanele ibambelele kwimithetho nemigaqo yamazwe ngamazwe elawula imiqathango yenkululeko yokuthetha, njengaleyo ixhokonxa ugonyamelo.

c. Oorhulumente abafanelanga bayivale okanye babekel’ imiqathango ukusetyenziswa kwamajelo enkcazelo, kwanangamaxesha ezidubedube nakaxakeka. Ukulawula indlela yokufikelela kumajelo enkcazelo, ingakumbi kwinto yonke, kukwaphulwa kwelungelo lenkululeko yokuthetha.

d. Oorhulumente bafanele bakhuthaze ukufikeleleka ngokupheleleyo kwamajelo enkcazelo.

3. Bonke abantu bafanele bakhululeke ekubekwen’ esweni kwamajelo enkcazelo ngurhulumente.

a. Ukubekw’ esweni, nokuba kuyaziwa okanye akwaziwa ngulowo kujoliswe kuye, kuthibaza intetho ngokubeka unobangela wokutshutshiswa nokoyika impindezelo. Xa kusaziwa, ukubekw’ esweni kudala ukuzibekela imiqathango nto leyo eyingozi ngakumbi kwinkululeko yokuthetha.

b. Njengomgaqo jikelele, oorhulumente abafanelanga bafune imbalelwano yamajelo enkcazelo phakathi kwabantu nje, bengafanelanga nokubek’ esweni indlela abantu abawasebenzisa amajelo enkcazelo, basebenzise amajelo enkcazelo ukujonga ukuba baya phi naphi na abantu, batshintshe okuthethwa ngabantu, okanye babek’ esweni abantu jikelele.

c. Xa oorhulumente bebek’ esweni—kwiimeko ezikhethekileyo nangokunxibelelene nophando olusemthethweni lokunyanzeliswa komthetho okanye ukhuseleko lwelizwe—nakuphi na ukubekw’ esweni kwabantu nokubek’ esweni kwembalelwano ngamajelo enkcazelo kufanele kuvisisane nemithetho nemigaqo efanelekileyo yamazwe ngamazwe esebenza kuphando olusemthethweni, njengokufumana isigunyaziso ngomyalelo wenkundla.

d. Inkululeko engangxengwanga yokuthetha ibandakanya ilungelo lokuba neemfihlo; yonke imithetho nemigaqo yamazwe ngamazwe yokuba neemfihlo isebenza kumajelo enkcazelo, yaye kusenokufuneka imithetho nemigaqo kwanokhuseleko olutsha.

e. Ukuqokelela nokugcina kukarhulumente iinkcukacha nenye inkcazelo eveliswa ngamajelo enkcazelo, kuquka ukudimbaza iinkcukacha, kufanele kuvisisane nemithetho nemigaqo yamazwe ngamazwe yokuba neemfihlo, enjengokuthi kufuneka ukugcinwa kweenkcukacha kusikelwe ixesha, kulinganiselwe, kuze kwaziswe abantu abachaphazelekayo ngokufanelekileyo.

4. Icandelo labucala, de kuthi iinkampani zobugcisa, zibotshiwe lilungelo lenkululeko yokuthetha kwanamalungelo abantu.

a. Imigaqo ebekwe kwesi sibhengezo ikwasebenza ngokulinganayo kwicandelo labucala.

b. Iinkampani zifanele zihloniphe amalungelo abantu, kuquka ilungelo lokuthetha, kwaye zifanele ziwakhuthaze la malungelo kwanaxa imithetho nemiyalelo yelizwe elo ingawakhuseli.

c. Iinkampani zobugcisa zinemfanelo yokugqiba ngendlela iimveliso zazo, iinkonzo, kwanemigaqo-nkqubo yazo eya kuthi iwachaphazele ngayo amalungelo abantu kumazwe ezifuna ukushishina kuwo. Ukuba kubonakala ukuba kungenzeka ophulwe la malungelo, okanye xa ukusetyenziswa kwemveliso okanye inkonzo ethile kunokuhlobana noku kwaphulwa, iinkampani zifanele zizilungise okanye zizirhoxise izicwangciso ezindululwayo ngenjongo yokuhlonipha amalungelo abantu.

d. Iinkampani zobugcisa zifanele zimisele imigaqo yenkululeko yokuthetha kwimisebenzi yazo engundoqo, njengasekuyilweni kwemveliso ukukhusela ukuba neemfihlo.

e. Ukuba imisebenzi yazo ifunyaniswe isaphula ilungelo lokuthetha, iinkampani zobugcisa zifanele zikhuphe imbuyekezo kwabo kuthe kophulwa amalungelo abo, kwanaxa oorhulumente kungekho kulungisa bakwenzayo bona.

Njengoko yasekwa ngowe-1922, iPEN American Center ikhusela ilungelo lokuthetha naphi na apho lithi lisongelwe khona, kwaye ikhuthaza ukuncazelana ngoncwadi nenkcubeko yamazwe ngamazwe. Ukuze ufumane inkcazelo engakumbi, tyelela apha www.pen.org. 

 by Dr. Raymond Louw, Vice President of SA PEN, 30/04/2013

After five years of debate, South Africa’s Protection of State Information Bill, or secrecy bill as it was dubbed, the legislation passed through the final stage of the Parliamentary process on April 26 with 190 members voting in favour, 75 voting against and one member abstaining.  A total of 134 members, of which 34 were members of the ruling party, the African National Congress, were absent.

The next step is for President Jacob Zuma to sign the bill into law or if he has doubts about its constitutionality, to return it to the National Assembly for review.  Alternatively, he can refer it directly to the Constitutional Court to establish its constitutionality.  If he signs it into law the opposition parties have the option of referring it to the court if they can muster 134 votes, a third of the house’s 400 members.  That will be a hard task because opposition members in the house total 136 and not all of them may vote for such a move and the chances of ANC members siding with the vote are slim.

Several civil society organisations such as the South African National Editors’ Forum, the Freedom of Expression Institute and the Right2Know campaign who have strongly opposed the bill have declared their intention to refer it to the Constitutional Court if the parliamentary processes do not succeed.  The process open to them is to apply to the court directly.

Their determination suggests that ultimately the bill will land up before the court and several lawyers – in contrast to the government’s legal advisors – believe it will fail the constitutional test.

The lengthy processes to which the bill has been subject -- some 800 changes to the text were made -- has resulted in many improvements, but the bill remains under attack because the amendments have not gone far enough and there are still some very objectionable features.

The major criticism remains a failure to include a public interest defence for contravening a provision of the Bill prohibiting the publication of classified information that should be in the public domain in the public interest.  Lack of this protection could be harmful to whistle-blowers, journalists and members of the public.

Other broad criticisms of the bill are that the definitions and classification procedures and applications are too broad and not strictly limited to national security which the bill states is the purpose;  the scope for classification to be applied includes cabinet ministers and heads of government departments and other organs of state which make application showing good cause for such power to be extended to them; the wording of some sections of the bill is confusing and contradictory and open to misinterpretation; and the excessive powers given to the Minister of State Security whose role extends beyond the scope of policy making and could result in political interference in the classification of information.

Another complaint is the manner in which the drafters of the bill have ignored the principles for classification of official secrets outlined in the Johannesburg Principles drawn up by a group of senior lawyers and experts in international and constitutional law, national security and human rights who in 1995 gathered in a country lodge north of Johannesburg to compose them into a document which has been endorsed by the United Nations Commission on Human Rights.  The conference was organised by Article 19 in collaboration with the Centre for Applied Legal Studies at the University of the Witwatersrand in Johannesburg.

One of the broad descriptions of subject areas that give rise to concerns about the manner in which a very wide range of information can be classified is contained in the definition of national security.  This includes the protection of the people and territorial integrity of the Republic against the exposure of economic, scientific or technological secrets vital to the Republic.

The manner in which authority to classify information is extended far beyond the confines of the security establishment, despite a clause which states that secrecy is justifiable only when it is necessary to protect the national security, emerges in another clause which states that the powers of classification, reclassification and declassification apply to the cabinet, security, defence and police services and to any organ of state or part thereof that makes application to the Minister of State Security.  A head of an organ of state may delegate, in writing, the authority to classify state information to a staff member at a sufficiently senior level without spelling the level of seniority.  Potential ministerial involvement in classification is illustrated by a clause which says that if there is significant doubt as to whether state information requires protection, the matter must be referred to the relevant minister for a decision.  

While having made the point that protection of national security is the only justifiable reason for secrecy, another clause dealing with the principles that underpin the legislation ``and inform its interpretation and implementation’’ states that the protection and classification of certain state information is however vital to save lives, to enhance and to protect the freedom and security of persons, bring criminals to justice, protect the national security and to engage in effective government and diplomacy.  When information is categorised as classified, all individual items of information that fall within that classified category are deemed to be classified.

A classification review panel will assess and hear appeals against classifications but the criticisms are that the minister has a say in the composition of the panel and also in how it conducts its affairs.  Another area where the minister may exercise substantial powers to interfere with the classification processes and introduce undesirable political considerations is in the promulgation of regulations.

The penalties that can be incurred are severe and range from three to 25 years imprisonment.  The most severe penalty is imprisonment of between 15 and 25 years for a person who unlawfully and intentionally communicates, delivers or makes available state information classified top secret which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state;  or who unlawfully and intentionally makes, obtains, collects, captures or copies a record containing state information classified top secret which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state.  Lesser prison sentences apply to similar offences involving information classified secret or confidential.  Conviction on the basis that a person ought reasonably to have known would directly or indirectly benefit a foreign state is questionable.

Also questionable are the restrictive measures imposed on judicial offices to conduct court hearings in camera because classified information may be produced during the hearing.

A clause which will have a chilling effect on journalists states that a person in possession of a classified record knowing that it has been unlawfully communicated, delivered or made available must hand over the document to the police, the intelligence service or the state department that classified the information.  Failure to do so carries a jail sentence of five years.  It is uncertain whether having handed over the document the person would be charged with possession.  If a reporter is involved – and they are frequently recipients of such communications -- he or she may also be confronted with the ethical question of whether to disclose the identity of the person who gave the document.

 

On censorship...

Censorship is a recent and painful memory for South Africans. In an event organized for the Nobel Peace Prize winner, Liu Xiabo, several of the writers invited to read in his honour had been imprisoned for writing things the state did not like and seen their works banned. Many of the books I wished to read as a student at the University of Cape Town were banned. One needed special permission to read certain or you needed to travel to places where knowledge and imagination breathed easier. Being in possession of banned books carried heavy jail penalties.

Click Here for the Full Article

I was privileged to attend this year's PEN International Congress held in Gyeongju in South Korea. This was after quite a busy PEN year in which some of the projects around the Secrecy Bill and our literacy partnership with Nalibali have started to take some shape. I will come to these below.

The Congress (getting there was an epic journey) was held in Gyeongju, a small mountainous town that was once the old Buddhist capital of Korea. So it was a lovely setting. There was a great Free the Word! Festival that happened in parallel. Soyinka and Le Clezio were the two Nobel Laureates in attendance and both spoke wonderfully. A literary highlight was the presence of some North Korean writers in exile who spoke very movingly about their own experiences and the difficulty of keeping any sort of literature alive in North Korea. The Congress accepted two new PEN Centres – the North Korean Writers in Exile and a Lebanese Centre – into PEN International. Both represented by brave people in very troubled parts of the world.

The Congress itself was busy and businesslike. Much of what is attended to is International Board work – so the books were presented and accepted. Eric Lax, who has become a friend over the last three conferences I have attended, has managed to get PEN International out of the red and firmly into the black. The work done by John Ralston Saul and Laura McVeigh on stabilizing funding through the Publishers' Circle has worked out well and the big publishers have committed money for the next three years. All of this is on the website (www.pen-international.org), but I thought it was encouraging for our own efforts – especially that of Justin Fox who has done a great job in drawing in publishers to make our own South African Publishers' Circle.

Laura McVeigh, the new director, has certainly brought much more focus to PEN International and she is starting to build a good team of people and PEN is hiring so the load has eased on the few people who seemed to do everything. As in everything in the world, a great deal of work has shifted to managing social media and the website is well worth visiting to see what the various PEN Centres are doing. She has also managed to secure a substantial grant from the Swedish International Development Agency, SIDA. Some of this funding is available for projects in Africa, so I will be applying for some funding from SIDA for the work that we are doing with the Nalibali campaign.

There were elections. I stood for a vacant board position – and despite a wonderful nomination speech from Nicholas Kawinga of Zambian PEN – was defeated by two votes. I had a great deal of support though from a variety of PEN centres and the experience was interesting and well worth it. Although I did not win, it was certainly good to campaign a little and to focus clearly on what we have been doing. Which is plenty.

Over the last year, I have worked with PEN International, American PEN, with the Secretary General, Takeaki Hori of Japan and with Marian Botsford-Fraser, Chair of the Writers in Prison Committee in drafting the pioneering Declaration on Free Expression and Digital Technology. We presented this work to the assembly and the PEN International Assembly voted unanimously on September 12th in favour of the declaration that will focus on issues of freedom of expression and digital media. This declaration – the text of which is also online – took a great deal of work and focus and it sets the basis for a way of moving forward into a very different world. One of the main problems is that there is no longer the familiar dyad between citizens and state. This is now triangulated with the large companies that control digital technology and information. There was much discussion on this issue – but I think if you read the text you will see that we have managed to be coherent about the principles of freedom of expression and the fast-changing digital world. I will continue on this committee and we will focus on the crucial and thorny issue of copyright for the next congress. It was a difficult issue but deftly dealt with and passed.

Another exciting initiative is the PEN New Voices project. This was a new project that PEN International has taken up with enthusiasm. I had been thinking of and discussing ways in which to pass on the PEN baton of freedom of expression, as it were, and to find ways of fostering new talent and young writers. The project will work like this: each PEN centre chooses one or more senior and established writers – Nobel Laureates, if that is appropriate – but well known figures in their countries and linguistic traditions. These writers do not need to be PEN board members – the point is that they are well known and have prestige. Each of these will choose a young man and young woman under thirty – blogger, poet, novelist, whatever – and put these young people forward. PEN international will publish their work (online, I imagine) and there will be winners in each region. Three of the best will then attend the next Congress. It is easy and cheap to do and will, I hope, enable a good mentoring system between senior writers and the really new generation. It will also avoid the impossible weight of sifting through competition entries – and will get rid of the gender balance issues in an elegant way. I presented this at the Congress – and it was met with much discussion and enthusiasm. PEN International will be announcing the details shortly.

South African PEN came up for discussion because of our submission to the UN Peer Review. This was facilitated and financed by American PEN – Raymond Louw did almost all the input, so many thanks to him. And the charming and ever helpful Deji Olukotun, a Ford Foundation Fellow at American PEN, made the submission. I am sure you saw the international coverage that this generated. Most importantly, however, PEN objections to the Protection of Information Bill – aka the Secrecy Bill – are on record. This will be of great value, I hope, in our future work against the bill that looks set to be passed soon. Although there have been plenty of amendments the crucial public interest defence for the publication of classified material has not been included. I had several questions about this from PEN centres and offers of support and assistance. We will need to consider how we take this further.

Pretoria PEN petitioned to the Assembly to have the name of the Centre changed to PEN Afrikaans. Dido Ekm made the most moving presentation, the assembly voted and the name change was passed almost unanimously (there was one abstention). I hope that we will work together with PEN Afrikaans– especially on issues that pertain directly to freedom of expression and with the Nalibali literacy campaign.

I have attended three congresses in a row now, and the experience has been invaluable. I have managed to build and consolidate networks and friendships that have enhanced what we do. American PEN in particular has provided South African PEN with substantial material support. I am currently discussing partnerships with them for the literacy project. They will also be assisting us in drawing up a strategic plan and a fundraising profile so that we can cost, budget and fundraise for the future. I have also learned a great deal from them and from English PEN about how to make PEN work sustainable in terms of people and money.

There are two main areas that South African PEN needs to focus on for the next two or three years. The first one is, of course, the threats to freedom of expression in South Africa. These are serious and we need to work strategically on this issue.

The second is the pernicious effect that not being able to read has on a citizen's ability to participate fully in his or her society. This is why the work with Nalibali is so crucial. The partnership we have with Nalibali is simple and contained: PEN can provide an intellectual and non-partisan political space in which to discuss literacy and freedom of expression. Freedom of expression is the foundation of human rights: and without it –whether by a law that prohibits one from reading or writing or due to neglect that results in children not learning to read – one cannot be a full citizen.

So far, I have taken part in a panel discussion on children's reading, mother tongue and literacy at the Grahamstown Festival. I am hoping to do the same in Johannesburg at the Jozi Book Fair at the end of the month. We will be applying for a SIDA grant to host three or four forums/workshops around this – with Nalibali next year. (They will do the admin – they have a campaign manager). Part of the motivation in raising Publishers' Circle Funding was so that we could do some of this work – which draws in authors from a variety of publishers. And building a reading, thinking public is essential to the long-term future of publishing anyway. So a natural fit.

One final thing – the Open Book Festival turned out to be a great success. Mervyn Sloman has really pulled off something special. I was also glad to be able to have PEN partner with them in a small way again. American PEN brought out Cathy Park Hong, a wonderful Korean- American poet – appropriately enough after the congress there. We are hoping to do another exchange for next year and to get some South African writers to New York for the PEN World Voices Festival in April. So slowly things are taking shape.