Cape Town - The African National Congress on Wednesday rejected the idea of having a retired judge handle appeals against government refusal to release information classified under the contentious Protection of Information Bill.
The question arose in the ad hoc parliamentary committee where MPs have gone into extra time to finalise a redraft of the bill, after it provoked public outrage because of the vast powers given to the state to keep information secret.
Committee chairperson Cecil Burgess from the ruling party slapped down a proposal by the Democratic Alliance that a RICA (Regulation of Interception of Communications and Provision of Communication-Related Information Act) judge should rule on appeals against state bodies' refusal to disclose information.
“The RICA judge is a very special person. He is the person that considers applications from your agencies and deals with interception. He is the judge that has to make an order,” Burgess said.
“I would be hesitant to think that that judge would want to concern himself with matters, particularly because he is a retired judge in terms of the RICA Act .... and clearly if you understand what that judge does - it is complicated stuff and particularly also because of the security around it - you would not want him.”
The DA proposal aimed to curb the power the bill gives the minister of state security to withhold information, including the authority to hear appeals for disclosure.
The committee is currently trying to harmonise the bill with the Protection of Access to Information Act (PAIA), a liberal post-apartheid law that provides a mechanism for the public and the media to request private and state information.
Opposition parties had hoped that a proposal by the ANC to write the PAIA application process into the bill could be used to put the appeal authority into the hands of a more neutral party.
Media lawyer Dario Milo, a partner at the Webber Wentzel law firm, said the relief cross-referencing the PAIA and the bill would provide, was likely to be limited.
He agreed that the question of where an appeal would be directed “is very important”.
“How PAIA works is that you apply to the public body concerned and they make the decision. The appeal is usually to an appellate jurisdiction within the public body. It will be interesting to see how the committee intends to harmonise PAIA and the information bill as regards the state security minister's role.”
Likewise, Milo said, linking the two laws did little to provide the media and whistle-blowers with a so-called public interest defence, enabling them to argue in court that they contravened the provisions of the act to publish information for the greater good.
PAIA contains a public interest override, but it is a very narrow articulation of the public interest.
Milo said the requester would still have to go through the PAIA's lengthy application process, with 30-day timeframes for applications and appeals, before they could possibly have the documents declassified and made available.
“It is quite different. We are talking about information of importance to the media or to a whistle-blower, than, can be published immediately rather than going through the cumbersome, uncertain and bureaucratic route of PAIA before you get the result.”
He stressed that under PAIA information was only released “after you have gone through all the hurdles” and cited the Khampepe-Moseneke report case where the Mail&Guardian was still in court two years after its initial application to have information released under the act.
MPs are due to reconvene for deliberations on Thursday.
The schedule provides for them to adopt the bill on Friday, but there is general consensus that the deadline was unrealistic.
They still have to find accord on the scope of the bill, which was criticised by one MPs as being so wide as to allow for the classification of “a grocery list” and by many commentators as a throwback to the state paranoia of the apartheid-era.
The bill still appeared to divide thinking within the ruling party, with ANC veteran Pallo Jordan on Monday saying attempts to narrow media freedom through the bill and the proposed media appeals tribunal were “a fool's errand”.
“Given the policies we have in place and the laws we have in place, if the movement pursues this path it can only result in a lose-lose situation,” the former minister said.
The ANC on Tuesday refused to comment on his remarks.
“If there is anything inappropriate I will comment to him, not to the media,” party spokesperson Jackson Mthembu said. - Sapa