Parliament, Cape Town - The ANC on Tuesday agreed to drop a contested clause from the Protection of State Information Bill which critics said risked rendering the draft act unconstitutional.
Clause 1 (4) would have seen the bill overrule the progressive Promotion of Access to Information Act (Paia) of 2000 if there were a conflict between the provisions of the two pieces of legislation.
This was one of the biggest remaining sticking points between political parties finalising the bill in an ad hoc committee of the National Council of Provinces.
Ruling party MP Sam Mozisiwe told the committee: “We don't believe we have to put clause 1 (4) into the bill.”
He said the move was prompted by persuasive public input on the bill.
“We as the ANC believe we stand for the people, and we represent the people, and we are of the view that should delete 1 (4) altogether.”
Legal experts have cautioned that because the clause sought to trump Paia, which was written to give effect to the right to information enshrined in the Constitution, it made the bill ripe for challenge.
Public hearings in March heard pleas from the likes of South African Human Rights Commission (SAHRC) and veteran human rights lawyer George Bizos to scrap it.
The SAHRC said the clause would not only remove the right to access records protected on the basis of national security from the purview of Paia, but would criminalise such access without any allowance for public interest in the information.
Last month, the ANC proposed to solve the conflict by removing direct reference to Paia from the clause, but rights groups said this would leave intact the intention to overrule the prior law, albeit tacitly.
Despite this concession, the ANC on Tuesday stood firm on two other disputed clauses in the bill, and said it would not bring further amendments to the bill.
Firstly, the party reiterated its long-held refusal to include a public interest defence to give greater protection to whistle-blowers who published classified information.
Opposition parties and civil society have lobbied the ruling party for two years to insert such a defence in clause 43 of the bill, which makes disclosure of official secrets a crime punishable with five years in prison.
“On the public interest defence, we are not going back there. We are of the view that that matter is really not open to discussion,” said Mozisiwe.
Secondly, the ruling party said it would not raise the liability threshold for espionage by dropping the phrase “ought reasonably to have known” with regard to this crime, which carries a 25-year prison sentence.
This has been criticised by legal experts as making the burden of proof on the state so low that it raised the spectre of somebody being jailed for that length of time “for stupidity”. - Sapa