The Right2Know campaign has expressed concern that the National Council of Provinces (NCOP) has deliberated on its submissions on the Defence Amendment Bill without Right2Know representation being present.
Thami Nkosi, Interim Organizer: Secrecy and Securitization, on 27 February wrote to Simphiwe George Mthimunye, Chairperson Security and Justice Committee National Council of Provinces, on the matter.
Nkosi said “It has come to our attention that the NCOP committee met on the 19 February to deliberate on the Defence Amendment Bill. Right2Know made submissions on the Bill as part of Parliament’s public participation process. We understand that our submission was given to the department for comment, and this response informed the deliberations on the 19 February.
“During the deliberations, as minuted by the Parliamentary Monitoring Group, statements were made about the Right2Know submission. This occurred in the absence of a representative from the Right2Know to offer explanation or engage members on the details of the submission, which was primarily concerned with adequate oversight, transparency and accountability of the department – something which should be of utmost concern to the Committee.
“We are concerned that the Committee has proceeded with the deliberations process without affording the Campaign to make oral submissions, or notifying the Campaign about the deliberations.
“This is particularly important for a Bill such as the one being considered by the NCOP. For a public participation process to be meaningful, opportunity written and oral submissions should be provided. Right2Know remains available to engage the Committee further through oral submissions.”
The Right2Know Campaign in November last year expressed concern over some of the clauses of the Defence Amendment Bill, which it says is moving backwards to re-introduce apartheid-era clauses.
In its submission to the NCOP Select Committee on Security and Justice, Right2Know said “it is common cause that transparency is the best cure for corruption – and indeed to build or rebuild public confidence.”
Its submission focussed on aspects of the Bill that limit access to information, freedom of expression and discourage acts of whistleblowing. These include clauses 15 and 16 (proposed new section 83A and 104).
The overview of the Bill explains that the ‘new’ clause 15 prohibitions are a re-introduction of the apartheid-era 1957 Defence Act provisions, removed from the current Defence Act of 2002. According to section 83A “The Minister may prescribe measures to regulate access to any military camp, barracks, dockyard, installation, premises, areas or property, or to any airbase or any land or area of water which is used either temporarily or permanently by the Defence Force or which is under the control of the Defence Force, including a building, premises or area or any part thereof which is also being used or is occupied by, or is the property of any other person.
“Any person who fails to comply with any prohibition, restriction or condition prescribed under subsection (1) is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 15 years.”
Right2Know said this clause provides for extremely broad prohibition on access to military property and or large areas around such property, with excessive, indiscriminate penalties. “This chilling effect of this is concerning. The effect of the prohibition may mean grievous human rights abuses will be not be observable, humanitarian aid possibly stopped or limited, and critical accountability media reporting would be silenced.”
Right2Know said the Bill’s criminal sanctions may, for example, see community members being prosecuted for unintentional and harmless access to military property or areas. This is applicable in the Marievale eviction case. Had this prohibition been in force, residents posing no substantial threat to the state would have been liable for hefty fines and up to 15 years in jail.
Section 83A [Clause 15 (3)] extends the prohibitions to include “any land or premises on or in which armaments are developed, manufactured, serviced, repaired or maintained, must be regarded as land or premises used by, or under the control of, the Defence Force.”
Right2Know said this prohibition likely includes state owned arms company Denel, which has found itself highly exposed to state capture. “A blanket prohibition with chilling criminal sanctions as envisaged by this clause is frankly unsuitable given the vulnerability of this SOE. Greater public oversight and accountability is urgently required.”
“Right2Know is deeply concerned that almost 25 years into our constitutional democracy, the defence sector, which should be moving towards being a more transparent institution, is moving backwards to re-introduce apartheid era clauses. Our strong recommendation is that this entire section should be scrapped.”
However, in the event that the Committee chooses to retain these provisions, Right2Know urges members to amendment certain clauses. It recommends that access to military property or areas with the purpose of exposing criminality, corruption or imminent public danger should not be subject to criminal sanction.
Right2Know takes issue with the penalty and offence clauses in Clause 16 of the Defence Amendment Bill which it says overlook worrying criminal sanctions in Section 104 of the Defence Act of 2002 (which deals with penalties).
“There are sweeping criminal penalties of up to five years for the disclosure and publication in the media of all classified information in terms of the Act. Section 19(a) ramps up the penalty for accessing, possession, reproduction and disclosure of classified information from “classified facilities, installations or instruments” including “digital data” up to 25 years in prison.
“The constitutional right to protest and strike are unduly criminalised, despite our apex court ruling that the defence department is not exempt from adhering to constitutional principles,” Right2Know said, adding that the Act provides no explicit protection for whistleblowers.
One of the problematic sections of the act states that “any person who obstructs, damages, removes, destroys or commits any other act on or against any property used for protecting or safeguarding the Republic, is guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding 25 years.”
Another problematic section highlighted by Right2Know states that “subject to the Promotion of Access to Information Act, 2000 (Act 2 of 2000), any person who, without authority, discloses or publishes any information, or is responsible for such disclosure or publication, whether by print, the electronic media, verbally or by gesture, where such information has been classified in terms of this Act, is guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding five years.”
Other sections of the Act state that any member of the Defence Force who participates in any strike or secondary strike action, is guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding five years.
“It would be prudent and in the public interest for this Committee use this opportune moment to introduce minor additional amendments to remedy some of the more serious defects of s104, which may infringe on the constitutionality of the Act,” Right2Know said.
In early February the Department of Defence responded to Right2Know’s comments. It said the tone used by Right2Know is “disconcerting” and deemed it unnecessary to respond to all the “allegations, accusation and insinuations made by Right2Know and is also of the view that Parliament is not the forum to debate the correctness of their views.”
The Department only concentrated on clause 15 saying it is “a justified, reasonable and necessary amendment of the Defence Act, 2002. There are no ulterior motives to its insertion and there is no reason to presuppose that the envisaged regulations will be invalid, impractical, unreasonable or ambiguous, will not comply with the Constitution or will be in conflict with other laws.
“Section 104 of the Defence Act, 2002, is not at issue in the DAB [Defence Amendment Bill]. Right2Know is advised to raise their concerns regarding that section with the Minister of Defence and Military Veterans and follow the correct procedural processes, should it still wish to raise its concerns pursuant to this response.”