ANC allows further debate on info Bill

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After months of wrangling, lawmakers on Friday won agreement from the ANC to at least consider proposals for extending protection to those who disclose classified information for the public good.

The ruling party insisted that it would not countenance a classic public interest defence for media in the Protection of Information Bill — a battle cry of critics of the draft Act — but said it would consider different opposition proposals for safeguards, the South African Press Association reports.

The Democratic Alliance’s David Maynier proposed that the Bill state clearly it is not an offence to disclose information if it was classified to cover up corruption or incompetence or to spare the state embarrassment. The proposal leans on a clause that was written into the Bill at the behest of the ANC to prevent and penalise wrongful classification.

The African Christian Democratic Party (ACDP) called for still wider protection for disclosure, suggesting that nobody should be considered guilty of an offence “if the public interest in the disclosure outweighs the public interest in non-disclosure”. As a narrower alternative, he proposed that lawmakers borrow from the public interest provisions in the Promotion of Access to Information Act.

The Sunday Times adds Dene Smuts, who has led the DA delegation, presented their first choice, which would be a clause saying “any act which constitutes a genuine and bona fide act in furtherance or promotion of the public interest shall not constitute an offence”.

The IFP’s Mario Ambrosini argued for a media exemption similar to the first amendment of the US constitution, saying an official who discloses a secret under his care could be prosecuted, but never the journalist who publishes it.

Maynier’s compromise, which Landers said the ANC would consider, was to add a paragraph to the clause establishing disclosure as an offence saying it would be a crime “unless such classified information is used to conceal an unlawful act or omission, incompetence, inefficiency, administrative error … or to prevent embarrassment to a person, organisation or organ of state”.

ANC MP Luwellyn Landers only offered one small outright concession but committed the ruling party to studying other parties’ proposals, SAPA said. He proposed decriminalising perusal of a classified document, though the Bill would still oblige whoever came into possession of a state secret to hand it back to the security bodies and file an application for them to declassify it. If this were refused, Landers said, the person could then turn to the appeal authority proposed in the Bill.
“Essentially the rule of law applies equally to all people. The media cannot hold itself above the rule of law. If the media is in possession of a classified document … it must be taken back to the relevant authorities.” The concession was described by opposition MPs as “tiny” but it would prevent the potentially Orwellian situation where somebody comes across a state secret but cannot ask authorities to declassify it because he would then risk prosecution for possession of classified material.

Maynier welcomed the ANC agreement to consider opposition submissions. “I think it is a positive development that the ruling party is now considering the proposal and we look forward to hearing their view.”

The ANC on Friday also agreed to consider scrapping section 43 of the Bill, which prohibits the disclosure of a state security matter. “I said we would look at it,” Landers said. The clause has been of great concern to activists as they believe it would enable the state to draw a veil of secrecy over any issue, including service delivery, by declaring that disclosure could threaten state security. Inkatha Freedom Party MP Mario Oriani-Ambrosini said the ruling party had no choice but to agree to remove the clause because it ran counter to their promises to narrow the scope of application of the Bill. “It was a loophole bigger than the legislation itself.”

Deliberations on the Bill resumed last week Monday after the ANC in June made a raft of concessions, including removing mandatory jail sentences for disclosure and restricting the power to classify to the intelligence and security structures. But there was fresh alarm this week when it appeared to reverse some of the changes by slipping discarded notions back into the bill under the definition of national security.

These include the classification of economic information — a notion State Security Minister Siyabonga Cwele had agreed to bin because of fears it would be abused to cover up corruption.

Discussions on what the nation needs to be protected from by means of classification is expected to resume today.