The ANC's reluctance to define two key concepts in the Protection of Information Bill led on Monday to fresh cries of unconstitutionality and calls for it to be binned.
Luwellyn Landers, the MP leading deliberations on the bill for the ruling party, proposed that lawmakers not seek to define national security - set out in the bill as the sole basis for any decision to classify information - and leave it up to courts and intelligence operatives to interpret the concept.
He argued there was little international precedent for a definition and that the meaning of national security differed from country to country.
“Virtually nowhere in democratic dispensations such as ours have governments defined it. National security defies clear definition. It has malleable and very elastic meanings.”
Landers added: “Judges know what it means. They don't need a definition. Intelligence operatives know what national security means. You don't need a definition - you are speaking to the converted.”
But opposition MPs believe that, in the words of the Democratic Alliance's Dene Smuts, if left undefined the term “can mean any damn thing” and the current draft would sail dangerously close to earlier ones that sought to allow classification to protect not only national security but the still more elusive notion of national interest.
That provoked sustained protest and was eventually cut from the bill at the orders of the state security ministry.
Her colleague David Maynier said Canadian law did have a definition and proposed that South Africa borrow from it to write into the bill that national security did not preclude legitimate political activity, advocacy, protest and dissent.
“We need a clear and narrow definition because it must be clear to classifiers what may and may not be classified.”
Maynier warned that if this were not done, “there may again be a problem of constitutionality”.
The remark offended Landers, who pointed out that the ANC when it promised a host of concessions on the bill in June, agreed to limit the power to classify information to the intelligence agencies.
This meant that only six or seven bodies would have the power to classify information and their members had a clear grasp of what should be kept secret because it could put at risk the national security.
“I don't agree with you that if we don't define national security the bill is unconstitutional,” he said.
Landers earlier resisted opposition demands that “prejudice to the republic” be defined clearly in the bill. Clause 42 of the draft act makes it a crime punishable with up to 20 years in prison to obtain top secret information that could “benefit a non-state actor engaged in hostile activity or prejudice the republic”.
Smuts said the notion of prejude was far too wide and could allow the clause to be abused to silence the media, one of the main criticisms of the contentious bill.
Ideally, she said, the vague notion of prejudice should be removed, leaving the clause to target only those who traffic secrets to organisations like al-Qaeda.
Landers was adamant that the clause should remain and state law advisers said they were satisfied that it posed no problem.
The Right 2 Know Campaign accused the ANC of failing to let go of its initial, regressive agenda with the bill.
Spokesman Murray Hunter said slow, obtuse deliberations among lawmakers in recent weeks had convinced him that they could not deliver workable legislation by Parliament's deadline of September 23.
“I am increasingly of a mind that it should be scrapped in its entirety and another independent body should go to the drawing board and start again.”
Legal experts Iain Currie and Pierre de Vos have also said in the past they did not believe the law could be wrested away from its beginnings and turned into a conventional state secrets act by making changes here and there. - Sapa