Cape Town - State Security Minister Siyabonga Cwele on Wednesday urged MPs to reverse several widely welcomed amendments to the Protection of State Information Bill.
The minister's hawkish stance included a call for the reinsertion of a five-year prison sentence for those who disclosed classified information.
He also asked that the ad hoc committee processing the bill in the National Council of Provinces scrap a proposed blanket protection for people who published classified documents in order to expose a crime.
Cwele said in its last draft the relevant clause 43 was “unworkable” because only a court could determine whether there had indeed been a crime.
This would mean that whistle-blowers were only spared prison time if the disclosure was sanctioned by the Protected Disclosures Act, the Companies Act and the Prevention and Combating of Corrupt Activities Act.
Cwele further asked the committee to go back on a decision to scrap a highly contested clause that critics say would put it on a collision course with the Promotion of Access to Information Act (PAIA), and potentially, the Constitution.
Clause 1 (4) sought to ensure that where a conflict arose between the new official secrets act and PAIA, the former would prevail. After a two-year debate, the ANC last month heeded calls from experts and the opposition to delete it.
But Cwele said PAIA, which allows for the disclosure of state secrets where public interest outweighs security concerns, could not be the final word on classified information.
“There is no intention to trump PAIA or to leave PAIA ineffective... We have a responsibility to protect sensitive information and in terms of that information, only that information, this bill should prevail.”
Crucially, the minister also asked MPs to rethink a proposal to raise the threshold of proof for criminal conviction under the new legislation.
The ANC recently agreed to remove the phrase “ought reasonably have known” from the offences clause in the bill.
It was argued by opponents of the bill, including veteran human rights lawyer George Bizos, that the phrase placed an untenably heavy burden of proof on defendants tried for exposing state secrets.
But the state security department has long held that it would make it nigh impossible to secure convictions under the new legislation, and Cwele insisted that it was “important to ensure that prosecution is possible”.
He went on to say that the National Prosecuting Authority wanted further changes still to the wording of the section to ease prosecution, as the latest draft would require the state to prove that the accused knew his or her actions would compromise national security.
Bizos and his colleagues memorably argued in public hearings on the bill in March that without a higher burden of proof, the new law posed the risk of people being jailed for long periods for little more than stupidity.
Lastly, Cwele also questioned lawmakers' decision to restrict the power to classify to senior levels in the security forces, saying both the police and the army had objected to this.
The Right 2 Know Campaign said a call to give classification rights to all ranks was “outrageous”.
“One can easily imagine, in the light of the recent massacre at Marikana, that little of the valuable information that has emerged would see the light of day if the Minister gets his way on the Secrecy Bill.”
Cwele rejected suggestions that the executive was prescribing to the legislature, but added that he hoped to see the bill passed soon because South Africa needed a new official secrets act.
“We are not putting undue influence on Parliament, we are just putting our suggestions to them.”
The bill has been extensively rewritten in the past two-and-a-half years since it was introduced by Cwele and widely condemned as an onslaught on freedom of information.
It pitted Cosatu against the ANC, and is believed to have divided the top ranks of the ruling party. It now seems highly unlikely that it will be finalised before year's end.
The committee was this week granted another extension to its deadline to report to the NCOP, this time to the end of November. It will then have to be referred back to the National Assembly to approve changes. - Sapa