Picture: Denis Farrell/AP/African News Agency (ANA) Archives

Parliament - While the Protection of State Information Bill (POSIB) gathers dust, MPs are signing off on another draft intelligence law that has revived the constitutional debates and fears of official secrecy that arose around it more than five years ago.

Again there have been calls by fine legal minds for public interest and public domain defences to be included in the Critical Infrastructure Bill and again lawmakers have not fully extended the safeguards for whistleblowers and media believed to be needed to bring the legislation in line with section 16 of the Constitution.

If the POSIB was eventually, after a groundswell of public protest, amended to exempt those who reveal classified information in order to expose a crime from prosecution, the drafters of the current bill did not go as far.

"The problem with the bill is not what is in it but what is not in it," Murray Hunter, the national coordinator of information rights pressure group Right2Know Campaign, said this week.

He noted that like the final version of POSIB criminalised the wrongful classification of information by the state, the Protection of Critical Infrastructure Bill makes it a crime to knowingly advance false information in an application to have a site declared critical. But he said, just like POSIB, it failed to deal with the event where something was legitimately declared off limits but there was "a legitimate reason to make it public, to expose wrongdoing". 

The bill was drafted to replace apartheid-era legislation on national key points, which was famously abused by the government of former president Jacob Zuma to cover up the extent of state-funded renovations at his private rural home in Nkandla. It gives the police minister the discretion to declare certain installations critical infrastructure and prescribes how these are protected in the interest of national security.

At the height of the scandal, then police minister Nathi Mthethwa threatened news media who ran photographs of the presidential compound with prosecution under the National Key Points Act of 1980.

In one of the concessions won during deliberations, the new bill no longer prohibits the disclosure of information or publication of pictures of security measures at critical infrastructure if these are readily visible. Where they are hidden from sight, it becomes a crime punishable with a jail sentence of up to three years.

This followed a submission to the portfolio committee on police by Advocate Wim Trengrove who pointed out that the original provisions in clause 26 of the bill were unconstitutional as they included security measures on public display and would risibly have rendered it a prisonable offence to print a picture of the perimeter fence at Parliament or the police stationed at its gates.

The Civilian Police Secretariat this week told the standing committee on security and justice now pouring over the bill that the amendment was a clear improvement.

But Karabou Rajuili from the AmaBhungane centre for investigative reporting said remaining provisions of the bill would still have restricted reporting on the Nkandla scandal had it been in force at the time.

"We wanted to know the scope and the cost of the upgrades to the president's home, because that was the real issue. That would not have been deemed visible, so it would not have allowed if this had been law."

AmaBhugane's written submission to the portfolio committee argued that in the case of Nkandla: "Similar provisions in the National Key Points Act served to obstruct and frustrate media reporting, publication of images and access to information. The clauses in their current form repeat the errors of the NKP Act."

MPs also followed Trengove's advice in relation to a public interest defence but here his stance was directly opposite to that of the information rights lobby. Trengrove argued for its exclusion, reasoning that it was hard to imagine a situation where the risk of revealing top-secret security information might be justified in order to expose wrongdoing.

"I find it impossible to imagine circumstances in which it will be necessary to disclose secret information of the security measures at a critical infrastructure, or to take pictures of the secret features of those security measures, in order to reveal misconduct in the public interest. I accordingly cannot see the need for a public interest defence," he wrote. 

"But even if I am mistaken and if there are indeed circumstances in which such a need may arise, it will be a rare occurrence. It does not seem to be justified to risk the disclosure of secret information or features of the security measures at critical infrastructure to cater for the very rare circumstances in which it might be necessary to reveal wrongdoing."

Prominent media lawyer Dario Milo and visiting research fellow Ben Winks had argued that by failing to allow for the risk of harm to infrastructure to be weighed against the public's interest in disclosure, the bill was more restrictive than the Constitution's demand for openness allowed.

Milo and Winks noted that the country's common law on civil liability struck a balance between public interest and harm, but argued that since no concrete public interest defence has emerged there, Parliament had a duty to articulate the circumstances under which a disclosure would serve the greater good. Moreover, the lawyers said, the bill risked the anomaly of criminalising the kind of disclosures that are allowed under the Protected Disclosures Act and the Promotion of Access to Information Act.

They also pointed out that the bill failed to state the degree of fault, ie. intention or negligence, that would constitute liability under its provisions. Rajuili also red-flagged the drafters' vague definition of national security - they simply borrowed from the Constitution here - and cautioned that a lack of clarity would contribute to its chilling effect on media reporting.

It carries an echo of POSIB's early versions advancing the nebulous concept of "national interest" as cause for classification.

That bill was seen as an enabling mechanism for a regime bent on covering up corruption and was passed by Parliament in 2013, under threat of legal challenge from among others, the Congress of South African Trade Unions. It was never signed by Zuma, and President Cyril Ramaphosa has expressed no interest in doing so and the public gaze has drifted elsewhere.

The Critical Infrastructure Bill has not gathered the same notoriety and was adopted by the National Assembly at the end of August without fuss. Non-governmental organisations remarked that it was drafted by MPs who were not involved in POSIB and had come to the table without the memory of a long wrangle with Zuma's security hawks. Two old-school liberal MPs who fought successfully to amend the most draconian aspects of the "secrecy bill", Dene Smuts and Mario Ambrosini, are no longer alive.

Rujuili said there was now a risk that government would quietly achieve some of the contentious aims of the "secrecy bill" through another piece of legislation.

It remains to be seen whether the NCOP process will rubberstamp the bill, but if that is the case, she said, a constitutional court challenge would be considered.

In the meanwhile, The South African National Editors' Forum, Media Monitoring Africa and SOS coalition for the protection of the public broadcaster have raised concern that the bill raises the spectre of security vetting of journalists at the SABC and therefore fails to address the threat of staff being intimidated by the intelligence services.

The bill is likely to designate the SABC as "critical infrastructure" and the three groups say the freedom of expression of the SABC's editorial staff and the right of the South African public to receive information could be compromised.

"We believe this is a serious oversight which renders the Bill unconstitutional for violating the right to freedom of expression which is protected under section 16(1) of the Constitution of the Republic of South Africa," they have said in a joint statement. 

African News Agency/ANA