Cape Town - The ruling party bowed to pressure on the Protection of State Information Bill on Thursday, proposing a raft of changes in response to sustained criticism of the bill over the past two years.
These included a compromise on a public interest defence as a way of protecting journalists and whistle-blowers who risk prison to expose state wrongdoing.
ANC members of the National Council of Provinces’ ad hoc committee processing the bill proposed that section 43, which criminalises revealing classified information, made an explicit exception for cases where “such disclosure reveals criminal activity”.
Under the proposal, this section would also enable those charged with disclosure to argue in their defence that the information was wrongly classified to begin with.
The ANC also moved to amend section 49 of the draft act, which has been widely criticised for criminalising the disclosure of information relating to any state security matter. It had been seen as tantamount to drawing a veil over the activities of intelligence agents.
The proposed change would make it a crime only to reveal classified state information relating to security matters.
These two sections were among those singled out for criticism by Cosatu general secretary Zwelinzima Vavi in a submission to Parliament in late March when he threatened to challenge the bill in the Constitutional Court unless it was rewritten.
Vavi had charged that by creating a climate of secrecy and fear, the legislation risked turning South Africa into a police state reminiscent of the apartheid regime.
Other key changes proposed by ANC MP Siphiwo Mazosiwe was to strike the remaining provisions for minimum sentences from the bill and to remove the words “ought reasonably to have known” in relation to offences throughout the bill.
This would have a significant impact on the burden of proof on the state in court cases brought under the act.
For instance, in espionage cases - where those accused risk 25 years in jail - the state would have to prove that the person in the dock knew that his actions would benefit a foreign state.
The amendment would address a criticism raised by veteran human rights lawyer George Bizos that lawmakers had wrongly reversed the burden of in crimes like espionage, and that people risked “going to jail for 25 years for being stupid”.
The inclusion of an explicit defence of wrongful classification also responds to a point raised by Bizos, who famously defended Mandela on treason charges.
Thursday's concessions from the ANC came hours after State Security Minister Siyabonga Cwele told reporters he would welcome any initiatives that would help the bill to pass constitutional muster.
Cwele has always insisted that he would not countenance a public interest defence as it would amount to “shredding” the bill.
ANC sources said on Thursday that the amendment - which resembles an alternative proposed by the Democratic Alliance - would cover whistle-blowers without creating the spectre the minister feared of people disclosing vital state secrets and then invoking the public interest.
DA MP Alf Lees commented: “It does not go far enough but it really is a welcome alternative. It is an exemption clause, which means you cannot be charged. We hope we can now build that into a full public interest defence clause.”
Cosatu spokesperson Patrick Craven told Sapa the ANC's proposals “sound encouraging”.
The Right 2 Know Campaign however said the ruling party had “failed to heed country-wide calls for a public interest defence”.
It said some “positive half-steps were made today” but the bill still contained grave flaws that needed to be addressed.
The ruling party has in recent days again resisted calls from the opposition to scrap section 1(4) which states that it trumps the Promotion of Access to Information Act (PAIA), because it would almost certainly be found unconstitutional.
However, the ANC did propose on Thursday to sanction disclosure in section 43 where it is “required” by any other act.
Lees said this appeared to be a clumsy nod to PAIA but did not work as long as section 1(4) stood.
The committee was due to report to the NCOP on the bill on Tuesday, but resolved on Thursday to seek an extention of its reporting deadline to June 30.
Chairperson Raseriti Tau said the committee would invite the department of state security to give its views on the proposed changes to the bill, which is arguably the most contested since the end of apartheid.
Once the bill has been revised by the NCOP, it has to be sent back to the National Assembly. - Sapa