SPEECH BY MINISTER OF STATE SECURITY, SIYABONGA CWELE, DURING DEBATE ON THE PROTECTION OF STATE INFORMATION BILL; NATIONAL ASSEMBLY, PARLIAMENT, CAPE TOWN, November 16 2011
Honourable Speaker, His Excellency, Acting President Motlanthe, Ministers and Deputy Ministers, Honourable Members, Fellow South Africans: The Protection of State Information Bill, 2010, [B6B – 2010] has traversed a long path to reach this point. It is a product of efforts of successive Ministers who led the state security portfolio. These were Ministers Nhlanhla, Sisulu and Kasrils.
Today I stand before this House to complete this work. All these successive efforts have been made with a clear understanding that upholding national security is not a matter of choice but an obligation placed by section 198 of the Constitution on both the National Executive and Parliament.
This bill is therefore a legislation of general application in upholding our national security. We thank members of the Ad-Hoc Committee who devoted sufficient time in improving the bill. They also engaged members of the public through the submissions and public hearings. They have done a sterling job for which we are all grateful.
The African National Congress believes that the changes made to the bill are a correct response to the valid concerns raised by fellow South Africans during the protracted engagements. The amendments continued to ensure a fine balance between secrecy and openness that are the essential pillars of national security in a democracy.
Since the debate has, at times confused the problems we are seeking to address with this proposed law, it remains my duty to explain the objectives of the Bill to our people at large.
Currently, there is a Protection of Information Act, 1982 in our statute books. The apartheid regime followed a narrow approach to national security, aimed at protecting state, mainly from those fighting the oppression. From 1994, the democratic state followed a broader approach to national security, Human Security, which goes beyond securing the state to include protecting the people from fear or want. This bill, is heeding the clarion call of Freedom Charter that; “All apartheid laws and practices shall be set aside”.
Since 1994, our country has been facing an increasing threat of espionage because of inadequate provisions in the 1982 Act. The foreign spies continue to steal our sensitive information in order to advantage their nations at the expense of advancement of South Africa and her people. The ANC government may never allow such undermining of our national security to continue.
We have, through sections 36 to 38 of the bill, made espionage a serious offence that will be a deterrent to both foreign spies and their collaborators. However you won’t find foreign spies openly marching in the streets of Cape Town complaining that we are removing their easy access to our sensitive information, but they will fund their local proxies to defend their illegality.
We currently have no remedy to rising threat posed by information peddling. This is where fabricated information is introduced to the organs of the state with the ultimate aim of gaining a financial reward or causing disunity in government. It often comes in the form of exaggerated yet unsubstantiated threats or conspiracies.
In the early days of this new dispensation, you heard about the Meiring Report, which led President NR Mandela to appoint the Mohamed Commission to investigate claims that some in the African National Congress were plotting to overthrow the democratic government, and were sponsored by the late Michael Jackson. The Commission found the allegations to be a mere fantasy.
Subsequently, many other such conspiracy reports were investigated and again found to be baseless. The most notable report tabled to this House, is the Consolidated Special Browpeddlers to the erstwhile Directorate of Special Operations, known as the Scorpions. Section 45 of the bill criminalises and makes peddling not a profitable business.
The bill introduces the protection of valuable information by all organs of state. Valuable information is the non-classified state information that requires protection from alteration, loss or destruction in order to prevent individual hardship to our people. I am certain that each honourable Member of this House has heard from our respective constituencies of difficulties our citizens experience when their birth certificates, identification documents or driver’s licences are falsified, manipulated or destroyed.
In the recent years, we had cases were unscrupulous individuals hijack companies worth millions of rands, by illegally altering the information at the Company Registry. Sections 5, 8, 9 and 46 of the bill bring relief to the public by protecting these databases in the hands of the state.
Honourable Members, in line with our new approach of balancing secrecy and openness in upholding national security, this bill introduces a system of declassification of sensitive information. It introduces a practice and culture of regular reviews of classified state information. There are compulsory reviews after 10 years and mandatory declassification after 20 years unless there is compelling circumstance to prevent such.
The ANC introduced an amendment establishing the Classification Review Panel, an independent body, accountable to Parliament, charged with overseeing that classifying authorities comply in this regard. This provision further enhances the constitutionality of the legislation.
This bill is not about regulating the media. There is no single mention of the media in this Bill”. Neither is this Bill about covering up corruption. Let me take this opportunity to re-iterate that as the ANC marches to its centenary celebrations in two months time, we remain resolute and steadfast against corruption and fraud. Section 49 of the bill prohibits and criminalises improper classification with imprisonment of up to five years.
The amendments made by the Adhoc-Committee further enhanced the alignment with the Promotion of Access to Information Act as well as Protected Disclosure’s Act. The establishment of the Classification Review Panel act as a further deterrent to the abuse of classification of information.
The improvements, we applauded at the beginning, would not have been possible without the submissions and contributions of our people through their diverse organs of civil society and campaigns. In the public hearings, they pointed out weaknesses in the earlier formulations of the Bill.
For instance, the Committee among other things removed the provisions which were highlighted to be overbroad and may thus be unconstitutional. It narrowed the basis for classification from national interest to national security. All these were legitimate concerns and as the ANC we did not hesitate to support them.
Honourable Members, for the completeness of record and for the truth’s own sake, it needs to be highlighted that there are two demands that have been made that we have found impossible to accommodate in this Bill. These are public interest defence and public domain defence clauses.
“A public interest defence is a defence which allows a defendant who disclosed classified or protected information to avoid criminality, by claiming it was in the public interest to do so. The question is who determines such public interest? If the court finds there is no such public interest after such disclosure is made, the state will have no recourse as the harm will have been done as a result of such disclosure.
We have looked at international best practices and there is no country which practises such reckless practice. It has been persistently rejected in the USA over a long period. The British once accepted but quickly rej[ected this] addition, the bill has several inbuilt mechanism for public interest protection and overrides. We have strengthened the alignment with PAIA and protection of whistle-blowers.
The second one we cannot accommodate is ‘the public domain defence clause’ or ‘Hon. Ambrosini clause’. The Constitutional Court has in Independent Newspapers (Pty)(Ltd) v Minister for Intelligence Services and Others (2008) stated: “Whether or not a document classified “confidential” has been disclosed to some degree in the public domain is a relevant but not decisive factor in determining whether the document deserves continued protection. This is so because a leaked confidential document does not lose its classification. If it were so, people may be encouraged to reap the benefit of their own misconduct by leaking classified or protected documents and thereby rendering the documents beyond the protection they may deserve. However, the fact that the contents of the document has been referred to in public is not alone sufficient reason to order that the entire document should be accessible to the public.”
In challenging times like this, we draw inspirations from the giants of the struggle such as Amilcar Cabral: “Do not hide the truth from the people…Tell no lies and claim no easy victories”.
Fellow South Africans, I am sure that the truth has now become obvious for all to see as to what drives us in enacting this Bill. This is to repeal the apartheid law, deal with espionage, information peddling, provide for the classification and declassification of information, establish an independent Classification Review Panel and continue to balance the public interests of national security and access to information.
It is my singular honour and privilege to invite the House to approve the second reading of the Protection of State Information Bill, 2010 [B6B-2010].
I thank you.
Issued by Office of the ANC Chief Whip, Parliament, November 16 2011