After more than a year of wrangling, compromises and reversals, and in the face of sustained civil society opposition, the controversial Protection of State Information Bill is close to becoming law.
On Friday ANC MP Elleck Nchabeleng punched the air with delight as Cecil Burgess, chairman of Parliament’s specially convened committee on the bill, announced it would be sent for printing.
Minutes earlier, committee members had approved the bill clause by clause, giving the nod to provisions that will see mandatory jail terms for the possession or disclosure of classified information.
According to the bill, anyone who comes across such documents should notify, and surrender them to, the police or a security agency – or they will be guilty of an offence and liable to a fine or imprisonment of up to five years.
This sentence increases to 15 years in the case of disclosing classified information relating to the intelligence services, and 25 years when the information is handed to a foreign state.
Until the last minute, opposition parties tried to persuade the majority ANC MPs to reconsider the three contentious clauses dealing with the “unlawful” possession or disclosure of classified information.
The DA, ACDP and Inkatha Freedom Party all proposed that the ruling party add a clause to protect those who reveal classified information in the interests of the public.
But the ANC responded that the time for discussion had passed, and the clauses were put to the vote.
The eight ANC MPs, excluding Burgess, out-voted the opposition.
DA MP David Maynier proposed an exception when the disclosure revealed illegal acts, incompetence, inefficiency or an administrative error on the part of officials; or if the classification was an attempt to avoid criticism or prevent embarrassment to the state or an official; or if the information revealed an imminent and serious public safety or environmental risk.
But his plea fell on deaf ears.
In a statement later, State Security spokesman Brian Dube said with the now-narrowed scope of application of the bill, the department failed to see why members of the public, including journalists and whistleblowers, would need a public interest defence “when the committee has worked tirelessly hard” to align the bill with the Promotion of Access to Information Act, the Protected Disclosures Act and the Companies Act.
The DA and the ACDP have threatened to take legal advice on the constitutionality of not including a public interest defence in the bill, with a view to petitioning President Jacob Zuma under section 79 of the constitution to send it back to the National Assembly “in order to correct its unconstitutional aspects”.
DA MP Dene Smuts said afterwards the absence of a public interest defence would “have a chilling effect on freedom of expression”.
Alison Tilley, of the Right2Know campaign, said she was particularly disappointed by the absence of a public interest defence and the implications for whistleblowers.
The mood was tense as Burgess announced that the committee would start voting on the bill.
But the IFP’s Mario Oriani Ambrosini, who has provided much humour over the months, continued in the same vein by announcing he needed to “consult with my caucus and constituency” before voting.
He rejected the ANC’s offer of 10 minutes for this, saying it was too little.
When voting started a few minutes later, a point of clarity was raised on who was qualified to vote. This was because Cope MP Nic Koornhof, who was attending his first meeting of the committee, was suddenly voting on the bill.
Cope MPs have shown little interest in the proposed law: first their former party chief whip, Mbhazima Shilowa, skipped meetings of the committee and announced late last year that Cope would not make submissions.
His replacement, Smuts Ngonyama and an alternate member, Phillip Dexter, were no better and regularly skipped meetings.
The committee will meet on Monday to deal with the financial implications of the bill in light of the proposal for a classification review panel, which will review and oversee status reviews, classifications and declassifications, and will require funding.
The bill will then go to Parliament for a debate and approval before it can be signed into law by the president. - Saturday Star