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Pretoria - Securocrats in the ANC appear to have lost ground in the long battle over the Protection of State Information Bill as the party’s MPs have proposed the scrapping of a clause in the bill prohibiting the disclosure of state security matters.
The National Council of Provinces ad hoc committee processing the bill met to discuss proposed amendments after closed meetings between the ANC and opposition parties.
Among the amendments proposed by the ANC was to delete the clause specifically prohibiting the disclosure of state security matters. This clause in the bill calls for far stiffer penalties, including imprisonment for up to 15 years, for the disclosure, receipt and possession of information relating to the Department of State Security, than those applying to the classified information of other departments.
Responding to concerns that the bill would trump the Promotion of Access to Information Act (Paia), the committee has also recommended that the section relating to Paia be amended to prevent this.
Paia gives effect to Section 32 of the constitution, which guarantees the right to access to information, and objections had been raised about the Protection of State Information Bill superseding this legislation.
However, concerns were raised that the proposed amendment tabled by the ANC required rewording to reflect this intention.
Another concession welcomed by opposition parties was the exclusion of municipalities from classifying documents and the insertion instead of a more general protection of “state information”, rather than of any “organ of state”.
Committee members agreed that they required further assistance from the state law advisers.
The recommendations tabled by the ANC were widely welcomed by opposition parties, who said the closed meetings had led to considerable progress, but that some of their proposals had not been included in Wednesday’s report - including the removal of all minimum sentences.
“The engagements were very constructive… but they are incomplete, so there is still some way to go,” said DA MP Alf Lees.
He said he would be “happy”, however, to continue with closed discussions to achieve a bill that passed constitutional muster.
Freedom Front Plus MP Anton Alberts said the “progress” being made to bring the bill in line with the constitution was “encouraging”.
“Although these moves by the ANC, as a result of public pressure, are positive, we should not lose sight that the most important issue has not been addressed, and that is the creation of a public interest defence,” he said.
“Without such a defence - according to which persons could deal with classified information should it be in the interest of the public, where corruption and other maladministration are proved by the information - the bill is not acceptable to the FF Plus.”
The Right2Know campaign, a loose coalition of more than 400 civil society groups opposed to the bill, said there had been “some shift” - but not much - since the May 10 meeting in which ANC MPs made significant concessions, such as protection from prosecution for citizens revealing classified information that exposed “criminal activity”.
Right2Know national co-ordinator Murray Hunter said the removal of the clause relating to state security was significant as it meant that the least the Department of State Security would have to “play by the same rules” as other departments.
Hunter said clumsy wording of the section relating to Paia was an “unintentional fudge”, as ANC MPs had said their intention had been for the rewording to prevent Paia being trumped by the so-called Secrecy Bill. “The (State Security) Department… had the specific intention of overruling Paia,” he said.
He remained sceptical about the involvement of the state law adviser - despite acknowledging the need for technical expertise. He said Enver Daniels had in 2010 promised the public there was “nothing to fear” in the bill and that it would pass constitutional muster - as it stood then - before the significant amendments that had since been made.
“A great deal more still needs to be done to address abuse of power and protection of whistleblowers, but the ball game’s still on.”