Constitution Watch 15-2016

CONSTITUTION WATCH 15/2016

[27th July 2016]

Constitutional Alignment:

The Official Secrets Act and Freedom of Expression

Introduction

In recent by-elections, accredited observers were required to sign the Official Secrets Act before they were allowed into polling stations to observe voting.  This raises questions:

1. What is the purpose and scope of the Official Secrets Act and is it constitutional in view of the Constitution’s guarantee of freedom of expression?

2.  Should the Official Secrets Act apply to election observers and if not why are election observers being required to sign the Official Secrets Act?

Purpose of Signing the Official Secrets Act

The practice of “signing the Official Secrets Act” originated in the Civil Service:  a copy of the Act would be circulated to civil servants who had access to confidential information, and they would be required to sign a document saying they had seen the Act and had been given an opportunity to read it.  The reason for the practice was, firstly, to bring home to civil servants the need to keep government business confidential, and, secondly, to prevent them, if they were prosecuted, from claiming they had never heard of the Act and were unaware of their obligations under it.  Signing the Act did not alter their obligations in any way.  They were (and are) obliged to keep the government’s secrets whether or not they signed the Act.

The Scope of the Official Secrets Act

The Official Secrets Act, as its name indicates, is a statute designed to protect State secrets from disclosure to enemies and hostile organisations.  The Act is based on British legislation introduced in 1911 at a time when there was public alarm in Britain over alleged spying activities by German agents.  By virtue of its origin the Act is primarily aimed at preventing espionage, but it covers more than that:

- Section 4 of the Act prohibits the divulging of information, and the section is phrased in the widest terms:  anyone who possesses “any information” entrusted to him or her in confidence by a public officer, or obtained by virtue of his or her employment by the State, and who communicates that information to someone other than a person to whom he or she is authorised or under a duty to communicate it, is guilty of a criminal offence and liable to imprisonment for up to 20 years.  So if a civil servant or former civil servant discloses to the press, or even to a friend, any trivial information acquired in the course of his or her employment – for example, how many cups of tea are consumed daily in his or her Ministry – he or she can be gaoled for 20 years.

- Section 5(2) of the Act is also very wide and draconian:  anyone who allows someone else to have possession of an official document issued for his or her use alone is guilty of an offence and liable to be imprisoned for up to 10 years.

Constitutionality of the Act:  Does it Violate Freedom of Expression?

Section 61 of the Constitution states that everyone has the right to freedom of expression, including “freedom to … communicate ideas and other information”.  The right is not an absolute one, and it can be limited under section 86(2) of the Constitution so long as the limitation is:

“fair, reasonable, necessary and justifiable in a democratic society based on openness, justice … and freedom, taking into account all relevant factors, including … the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order …”

Freedom of expression, in the broad sense set out in section 61, is vital to the maintenance of democracy and good governance.  The more severely it is limited the easier it is for public officers to conceal mistakes, misgovernment and corruption.  Hence any limit on it must, as stated in section 86(2), be such as would be regarded as necessary and justifiable in an open democratic society.

Every society, even open democratic ones, must be able to protect themselves against espionage by enemies and hostile organisations, and there can be genuine differences of opinion about what information should be protected against espionage and what should be freely disclosed.  But sections 4 and 5 of the Official Secrets Act go far beyond legitimate protection against espionage.  They are too broadly framed and are unconstitutional.

Our Supreme Court has in the past declared laws to be unconstitutional on the ground that they have a “chilling effect” on freedom of expression.  The Constitutional Court has also done so, striking down laws such as the provisions in the Criminal Law Code regarding the publication of false statements and criminal defamation.  The Official Secrets Act undoubtedly has the same chilling effect on freedom of expression because it is so broadly phrased, and the penalties it prescribes are so severe, that everyone from civil servants to investigative journalists – and now probably election observers ‒ are likely to keep silent for fear of falling foul of the Act.

Should the Official Secrets Act Apply to Election Observers?

To answer the question one must look at the statutory functions of election observers, which are set out in section 40G of the Electoral Act.  The section states that, in addition to observing electoral processes, election observers “are entitled” to bring electoral irregularities to the attention of ZEC and to provide ZEC with comprehensive reviews of elections.  To the extent they do that, observers cannot possibly contravene the Official Secrets Act because they are performing their lawful statutory function under the Electoral Act.  Section 4 of the Official Secrets Act only applies to unauthorised communications, and communications by election observers to ZEC are specifically authorised by the Electoral Act.

The Electoral Act impliedly authorises election observers to make other communications as well, and these communications too will not be hit by the Official Secrets Act.  Both the Constitution and the Electoral Act make it clear that elections must be transparent.  Thus section 156(a) of the Constitution states:

“… The Zimbabwe Electoral Commission must ensure that … whatever voting method is used, it is simple, accurate, verifiable, secure and transparent”.

Section 3 of the Electoral Act states in paragraph (a):

“the authority to govern derives from the will of the people demonstrated through elections that are conducted efficiently, freely, fairly, transparently and properly …”

And paragraphs (c) and (d) of the same section go on to provide that political parties and candidates have the right “to have reasonable access to all material and information necessary for [them] to participate effectively in every election”.

There cannot be transparency unless election observers are able to publicise irregularities and defects as widely as possible, i.e. to everyone with an interest in elections.  Interested parties include not only ZEC but also the Government, political parties, candidates and the public at large.

One can say therefore that the functions of election observers under the Electoral Act, when read in the light of section 156(a) of the Constitution and section 3 of the Act, extend to informing all interested parties, including the general public, about irregularities and defects they have observed in an election.  By keeping all interested parties informed, they are carrying out their statutory functions and cannot be accused of contravening the Official Secrets Act, which applies only to unauthorised communications.

Why then were election observers asked to sign the Official Secrets Act?

One can only speculate on the reason behind requiring election observers to sign the Act.  Whatever the reason, its effect can only be to inhibit them from carrying out their reporting duties effectively and fearlessly.  Drawing their attention to the Official Secrets Act implies a threat that they may be prosecuted under it, and it is a threat that cannot be ignored.

Threatening to prosecute election observers if they disclose information will inevitably reduce transparency in elections, a transparency that is mandated by the Constitution.  The practice of making observers sign the Official Secrets Act should not be allowed to continue.

 

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