All eyes turn to Parliament this week as the Protection of State Information Bill enters the final stretch on its long and bitterly contested road to becoming law.
Public hearings at Parliament will take place over the next four days, starting Tuesday – and will include submissions from 18 organisations, including Public Protector Thuli Madonsela, Cosatu, the Nelson Mandela Foundation and advocate George Bizos, on behalf of the Legal Resources Centre.
Tuesday’s session includes submissions by the Open Democracy Advice Centre (Odac) and the SA National Editors’ Forum (Sanef).
They will be addressing the National Council of Provinces’ multiparty special committee set up to deal with the bill after it was passed, by 229 votes to 107 in the National Assembly on November 22 last year.
Dubbed “Black Tuesday”, that day was marked by widespread protests.
Chaired by the ANC’s Raseriti Tau, the committee has had public hearings in each of the nine provinces.
All the submissions scheduled for presentation on Tuesday object to the bill in its current form and all note that some of the bill’s more controversial provisions go against the “general principles of state information” spelt out in the bill itself.
The draft law underwent extensive redrafting by MPs after it was first introduced in 2010 by State Security Minister Siyabonga Cwele, and the version now before the NCOP is considered an improvement on the original.
However, there are still key areas of concern.
These include the absence of a public interest defence clause to protect whistle-blowers and journalists who reveal classified information in the public interest, and other changes critics believe are needed to bring the proposed law into line with the constitution.
The current bill would allow the minister – “on good cause shown” – to extend the bill’s secrecy application to any state organ that asks for it. But Odac said this was restricted to agencies directly involved in state security, namely the police, defence force and intelligence services.
Odac has also criticised the inadequacy of whistle-blower protections, the criminalisation of the mere possession of state security information and the extreme severity of penalties, which range from five to 25 years in prison, as well as the inclusion of “economic, scientific and technological information” in the bill’s ambit.
Sanef will argue the bill offends the constitutional values of openness, transparency and accountability and that the government’s unwillingness to entertain a public interest defence clause will “undoubtedly create an unjustifiable chilling effect on freedom of expression”.
Such a defence would allow a whistle-blower or journalist to argue that the disclosure of classified information was justified if, for instance, it revealed evidence of significant incompetence, criminality, wrongdoing, abuse of authority or hypocrisy on the part of government officials.
The Human Rights Commission’s submission will note that while those caught in possession of classified information will face harsh penalties, the same will not apply to government officials who classify information to cover up wrongdoing. This, the commission will argue, is “as great a form of mischief as unlawful possession of classified information”.
The Law Society of SA will argue that the absence of a public interest defence makes the bill unconstitutional, that it should apply only to intelligence matters, that its maximum penalties be reduced and minimum sentences be scrapped.
Corruption Watch, an NGO established in January this year and which enjoys the support and active participation of ANC ally Cosatu, will also make a presentation today. In a letter to the committee, it said it would be “extremely concerned at any legislation that impeded – whether by design or inadvertently – the right of members of the public to freely report experiences of corruption to us”.
General principles of state Information:
Critics of the secrecy bill say many of its provisions contradict the general principles the bill itself says will underpin the law and “inform its implementation and interpretation”.
These principles are:
* Unless restricted by law that clearly sets out reasonable and objectively justified public or private considerations, state information should be available and accessible to all.
* State information that is accessible to all is the basis of a transparent, open and democratic society.
* Access to state information is a basic human right and promotes human dignity, freedom and equality.
* The free flow of state information promotes openness, responsiveness, informed debate, accountability and good governance.
* The free flow of state information can promote safety and security.
* Accessible state information builds understanding and promotes creativity, education, research, the exchange of ideas and economic growth.
* Some confidentiality and secrecy is, however, vital to save lives to enhance and to protect the freedom and security of persons, bring criminals to justice, protect national security and to engage in effective government and diplomacy.
* Measures to protect state information should not infringe unduly on personal rights and liberties or make the rights and liberties of citizens unduly dependent on administrative decisions.
* Measures taken in terms of this act must (i) have regard to the freedom of expression, the right of access to information and other rights and freedoms enshrined in the Bill of Rights; and (ii) be consistent with article 9 of the International Covenant on Civil and Political Rights and have regard to SA’s international obligations.
* In balancing the state’s legitimate interests, the relevant minister, official or a court must have due regard to country’s security, as it may not be compromised.
- Political Bureau