Delegation of classification powers queried

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IOL pic nov17 siyabonga cwele info bill GCIS State Security Minister Siyabonga Cwele. Photo: GCIS

Cape Town - The ruling party on Thursday raised the possibility of restricting the ways in which the state security minister may delegate the power to classify information under the Protection of State Information Bill.

The state law adviser's office assured lawmakers the bill's clause 3(2)(b), which confers on the minister the right to delegate classification powers, was constitutional.

But Raseriti Tau, chairman of the National Council of Provinces' ad hoc committee processing the bill, said MPs may nonetheless look at fine-tuning the clause.

“In a way it is a pity that we now sit with an opinion that said it is not unconstitutional. Nothing stops us from making it better still and it may be amended if we agree to it.”

ANC MPs said they were motivated to revisit the issue by a submission by veteran human rights lawyer George Bizos at public hearings on the bill in March.

Bizos had argued that the clause, which allows the minister to extend the right to classify to other ministers “on good cause shown”, fell foul of the principle of accountability enshrined in the Constitution.

He said the authority delegated by Parliament to the relevant minister could not be delegated in a parallel manner to other ministers or organs of state as this would undermine the legislature's oversight role.

Bizos urged that, if delegation were allowed, guidelines must be set to narrow the “unfettered discretion” given to the state security minister and compelling reasons must be given to justify its application.

This plea was directly referenced by ANC MP Buoang Mashile, who warned there was a risk the delegated power to classify might be abused.

“Let's concentrate on how we can give him a fettered mandate,” he proposed, referring to the intelligence minister.

The Democratic Alliance said it would be happy to support such a move.

Ruling party MPs have acknowledged that a raft of concessions on the bill in recent months have largely been motivated by Bizos's arguments.

This included scrapping the highly contentious clause 49, which criminalised the release of information on anything deemed a state security matter, and striking the words “ought reasonably have known” in relation to most offences created by the bill.

Bizos had said this term set such a low standard of proof that those prosecuted under the new legislation could be jailed for mere negligence.

The ruling party has, however, retained that phrase in relation to espionage, and stood firm in the face of calls to amend clause 1(4) of the bill, which seeks to assert its supremacy over other information laws.

Opposition parties say despite the recent agreement to remove direct mention of the Promotion of Access to Information Act (Paia) in that clause, it still seeks to trump that law and could therefore be unconstitutional.

But ANC MPs disputed this on Thursday, arguing that there was no conflict between the two pieces of legislation as Paia did not deal with classified information. - Sapa


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