Photo: Believe Nyakudjara

The ANC definitively ruled out writing a public interest defence into the Protection of Information Bill on Wednesday on the basis that it would place journalists above the law.

ANC MP Luwellyn Landers rejected all argument that allowing somebody who revealed a state secret to argue in court that he had done so for the public good would protect whistleblowers, promote transparency and fight corruption.

Instead, he said, the proposal plainly sought to protect the media from being sent to prison for publishing classified information.

“Let's be honest, essentially what the opposition is saying is that journalists who come into possession of classified information should be allowed to publish it.”

He said the bill did not place an “unjustifiable constraint on media freedom or freedom of expression” by forcing journalists to hand secret files to the police, then request the minister to declassify them if they felt the information belonged in the public domain.

“It merely makes the media subject to the rule of law.”

A heated debate ensued in which fellow ANC members likened a Democratic Alliance proposal to protect publication if the information was classified to conceal wrongdoing, to legalising theft.

DA MP Dene Smuts retorted: “We are talking about stealing. Theft and corruption is a big problem in our country and it is the duty of any democrat to expose it.”

She said that a public interest defence did not amount to legalising the exposure of legitimate sate secrets.

“It is just a defence. If they get it wrong they still go to jail.”

The Inkatha Freedom Party's Mario Oriani-Ambrosini urged the ANC to allow the defence and to trust the country's judges to decide whether it applied.

“A judge is competent to weigh whether the public interest is better served through disclosure or through secrecy.”

The chairman of the committee drafting the bill, Cecil Burgess, deemed the opposition argument “lop-sided” and said he believed that debate on the subject was exhausted.

This signals that the ruling party will use its majority muscle to outvote the opposition on the matter when it finalises the bill this week.

Civil society groups have said the exclusion of a public interest defence renders the bill unconstitutional and ripe for legal challenge.

Along with the Congress of SA Trade Unions, they reject the ANC's contention that, as the bill stands, it offers sufficient protection for whistleblowers who expose wrongdoing covered up by classification.

The committee is expected to return to the matter of whistleblowers in the remaining two days of deliberations.

The director of the Open Democracy Advice Centre (ODAC), Alison Tilley, held out some hope for increased safeguards in this regard.

“I'm hopeful that there can still be a turnaround on this subject.”

Her organisation has distributed a legal opinion from advocate Steve Kahanovitz.

He argued that the limited protection offered to whistleblowers who work for the state fell short of constitutional imperatives because of the heavy onus it placed on the accused.

The ANC said on Wednesday it has not yet studied his opinion.

Rights groups have welcomed have concessions by the ANC in recent weeks that have restricted the scope of the bill, and state officials' powers to classify information.

There was one further concession on Wednesday.

The ANC agreed to a proposal by Oriani Ambrosini to rewrite a contentious clause that would have prohibited the publication of any “state security matter”.

It was seen as giving intelligence agents near unfettered powers to keep information secret.

The redraft prohibits the publication of only classified information relating to the work of state security agents, but increases the maximum penalty for this crime to 10 years in prison.

“It has been turned into a 'don't mess with the agency clause', but at least the scope of what can be classified has not been widened,” said Oriani Ambrosini.

ODAC has welcomed the change.

Smuts said: “It removes a certain grounds for unconstitutionality.” -

Sapa