Protesters march to Parliament in Cape Town against the so-called secrecy bill on Saturday, 17 September 2011. The march was organised by Right2Know (R2K), a grouping of 400 civil society organisations that began fighting the controversial bill a year ago.The final draft of the bill is set to go before the National Assembly on Tuesday. It will then have to go to the National Council of Provinces for concurrence, before being signed into law by President Jacob Zuma. Picture: Nardus Engelbrecht/SAPA

The government and the ANC are not about to give ground despite demands that a public interest defence clause be included in the Protection of State Information Bill, which is now before an ad hoc committee of the National Council of Provinces (NCOP).

State Security Minister Siyabonga Cwele briefed committee members on the contents of the proposed legislation on Tuesday.

He dismissed calls for a public interest defence as a “minor issue”, which had become a “bone of contention” during the bill’s passage through the National Assembly.

The ANC used its majority in that house to muscle the bill through – without a public interest defence clause – in November despite growing public opposition to the bill in its current form.

Critics of the current version (B6B-2010), including ANC ally Cosatu and the Right2Know campaign, have demanded a public interest defence clause be included to protect whistle-blowers and others from tough jail terms for revealing classified information – provided this is done in the public interest.

Without such protection, whistleblowers would be less likely to expose government corruption and it would have a chilling effect on investigative journalism, they argue.

However, Cwele repeated his earlier assertion that “we don’t see (a public interest defence) in other countries”. Cwele told the National Assembly last year no country in the world allowed the “reckless practice” of including a public interest defence clause in its state secrets regime. “We stand by our statement on this matter and we will not change,” he said on Tuesday.

Cwele’s claim has prompted the DA to call for an investigation into whether or not the minister intentionally misled Parliament last year, since several constitutional law experts, including Pierre de Vos, have cited examples where a public interest defence is used.

Cwele said on Tuesday the only people who should fear the bill were corrupt officials, foreign spies and information peddlers.

It was “worrying” that detractors often referred to the “secrecy bill”, Cwele said and urged its opponents to come forward with “rational arguments” and not to become “emotional”.

“If you put your case, we are ready to listen to you. But if you spread false things in public, this will catch up to you,” he warned.

The bill was not about secrecy, but balancing the need for secrecy with the state’s obligation to operate in an open and transparent manner.

Asked by a committee member what would happen to a journalist caught in possession of classified material which exposed corruption, the minister said such a journalist would not be “crucified” as long as he or she returned the information without delay.

“We are not going to criminalise you just because you came into possession of classified material, provided you hand it in.”

And in a throw-away remark that raised a few eyebrows, the minister said that, in any case, the “regulation of the media” was not his department’s concern, but was for “another department” to deal with.

“Leaking classified information is a bad thing and no responsible citizen should do it. But corruption is also a bad thing and we should all fight it, including (via) this bill.”

The bill makes it an offence – punishable by up to 25 years in prison – for anyone to “unlawfully and intentionally communicate, deliver or make available” classified state information “which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state”.

The same punishment awaits anyone who makes, obtains, collects, captures or copies a record containing classified state information.

Both offences are deemed to have constituted espionage, whether or not espionage was intended.

Section 15 of the bill requires anyone in possession of classified material to “report such possession and return such record to a member of the SAPS or the (State Security) Agency”. Failure to do so could land you in jail for up to five years.

Committee chairman Raseriti Tau (ANC) said that, despite “this pre-occupation with what happened in the National Assembly”, his committee would not simply “rubber-stamp” the work done on the bill so far by parliamentary colleagues but would “apply their minds afresh”.

He was immediately contradicted by ANC MP Nosipho Dorothy Ntwanambi, who, as the party’s chief whip in the NCOP, outranks Tau within the ANC caucus.

“The media must understand that we are not starting a new process here. We are at the tail end… what you’ve lost, you’ve lost.”

The bill will now be taken on a public consultation roadshow across several provinces, starting on Monday. - Political Bureau