Info Bill debate evolves
26 Oct 2010
The Ministry notes with interest the ongoing debate and related activities on the Protection of Information Bill.
The Ministry also notes that with the ongoing interaction with key stakeholders in civil society around the intentions and the provisions of this bill, it appears that there is some form of convergence on the matter, barring a few points which remain areas of contestation.
We are in agreement about the need to ensure that free flow of information remains that oxygen and the lifeblood of our democracy and that any limitations to such a right must be based on legitimate national security grounds that conform to the international best practices.
On the application of the Bill, we maintain the view that the challenges that have been identified as requiring government’s intervention are not limited to a particular cluster of government but cut across all levels, including parastatals. Limiting the application, as some argue, will not address the clear and present danger of threats and real challenges that have been identified.
The Minister is on record indicating exactly what information is to be protected, adding that protection does not equal classification. Officials who will be classifying information will have to follow specific guidelines. Over and above this, they will have to apply a two part test- which requires that there must be clear, justifiable and legitimate national security reason(s) to do so and the need to protect the information once classified. This would, in itself, provide reasons as to why certain information must be classified. We reiterate that the Bill makes it an offence to incorrectly classify information to cover corruption, maladministration, incompetence or inefficiencies and the public would have to work with government to ensure this is not the case.
It is critical for the public to be reminded that the Bill is evolving with the proposals that the Ministry has tabled in Parliament to the Adhoc Committee of the National Assembly. These proposals include the removal of such concepts as ‘national interest’ and ‘commercial information’, as basis for classification. These are some of the fundamental changes that will result in a Bill that is markedly different, clearer, leaner and better than the one currently on the table. To dismiss such concessions as ‘cosmetic’ when there was a big outcry on their inclusion in the fist place, is disingenuous and a deliberate attempt to mislead the public on government’s willingness to listen to the public when it speaks and to apply its mind to the issues presented.
The application of penalties for unauthorised disclosure applies to those who have been found to have broken the law. It’s not correct to argue, as some have continued to do, that they will apply to society at large. It is critical to understand that when you legislate, the law becomes applicable generally, meaning you can’t legislate for a certain sector of society.
The Ministry wishes to emphasise that the independence of those who would be responsible for appeals on what can or cannot be classified is in line with international principles. It doesn’t mean that they will have to be people outside of government or state for them to be independent. What it simply means is that they must not have participated in the process to classify the information in question. In addition, the Bill provides that the courts will be the final arbiter.
Finally, the Bill is designed such that it allows for accessing classified information in the public interest using section 46 of the Promotion of Access to Information Act. This allows for public to apply to access such information and make it public, should they so desire, without facing any criminal charges.
This Bill is meant to repeal an old apartheid legislation of 1982, which has sections that are clearly not in keeping with our democratic dispensation. It therefore cannot be described as ‘worse that the apartheid legislation’ as this indicates a lack of appreciation of the issues we are grappling with. What we are appealing for is a contribution that helps take the debate forward to advance the interest of all the people of this country. Grand standing, spin and self-serving pronouncements add no value to ensuring that our people have access to information balanced with the need to ensure national security.
Brian Dube: Head of Communication
Cell: 082 418 3389.
Issued by: Ministry of State Security
26 Oct 2010