The African National Congress (ANC) Member of Parliament representing the ruling party on the ad hoc committee piloting the Protection of Information Bill through the National Assembly on Friday said there is little hope his party will reach agreement with opposition parties on remaining points of contention.
The suggestion of deadlock on the draft law, dubbed the “secrecy Bill” by freedom of expression campaigners, came at a meeting of the drafting committee where ANC MPs said formal deliberations had to be delayed because they had not studied opposition submissions, the South African Press Association and Business Day reports. Cecil Burgess, the committee’s ANC chairman, said he himself had “not been able to apply my mind other than in a casual manner and given it a very superficial glance”.
He postponed the work to tomorrow, when the ad hoc committee will hold its last meeting before Parliament goes into recess until May 20 – a month before the latest deadline for finalising the Bill expires on June 24, SAPA added.
The ANC rejected calls by the opposition that it use Friday’s scheduled meeting to seek consensus in an informal manner on a raft of issues where there was no agreement in sight. Luwellyn Landers, who has led the ANC’s arguments, said it was unlikely that the parties would find further agreement.
“Any differences we have, we will have. There is nothing that can be done about that. We have tried our level best. On some points we have found each other, on others we have not.”
There have been fears that the ANC would use its majority to rush the bill through Parliament in its current form, with severe implications for news reporting and little to limit the wide powers state officials have at present to file information as secret. This would likely set the stage for a Constitutional Court challenge by other political parties and rights groups, SAPA says.
Opposition MPs said they believed the true reason for the delay was that the ANC was still waiting for a political mandate on how to proceed with the bill that has become a political quagmire. “The ANC needs to look into its own soul and see whether more time will make a difference,” Inkatha Freedom Party MP Mario Oriani-Ambrosini said. He warned that the Bill had been widely reported on in the international media as a sign of “democratic degeneration” in South Africa, 17 years after the fall of apartheid.
The Bill sparked a public outcry last year, prompting the ANC to agree to drop the vague notion of “national interest” as cause for classification. In its latest submission this week, the ANC made a further concession in asking that classification be restricted to those instances where not doing it would be “likely or could reasonably be expected to cause demonstrable harm”.
Democratic Alliance MP Dene Smuts said this was a step forward, but feared that it would be hard to budge the ANC on its refusal to write a provision into the Bill to allow journalists who publish classified information to argue in court that they did so in the public interest. She said classification was so widespread “that we are reliant on the media to tell us what is going on”. The Bill will make it a crime punishable with 25 years imprisonment to communicate top secret information, and lawyers, journalists and activists argue that without a so-called public interest clause this would amount to an onslaught on media freedom.
The ANC submission retains a much contested clause making “information peddling” a crime. The opposition sees this as a bid to stem the tide of reports of strife and plots that have plagued the party. In the latest incidence, claims emerged a week ago that “intelligence agents” produced a fake report that some senior ANC members were plotting to oust President Jacob Zuma as party president at a congress next year.
In its document, the opposition Democratic Alliance party called for the scrapping of entire chapters of the Bill, including Chapter Two that provides for the classification of so-called valuable information to prevent it from getting lost and destroyed. MP Dene Smuts said “valuable information” had no place in the Bill and using intelligence agents as “the filing clerks of the nation” to safeguard it would simply perpetuate the misguided practices of the Minimum Information Security System (MISS), the post-apartheid guidelines on classifying information. Instead, she said, the only business of the Bill should be the protection of intelligence, international relations and technological secrets.
Smuts said as it stands, the Bill seeks to entrench the MISS in law by stipulating that its application be underpinned by regulations replicating the system’s guidelines, allowing the intelligence services to continue exercising control over information in state departments. She said this cannot be allowed as the MISS is unconstitutional because it allows for information to be classified without criteria and to be restricted when its release would “hamper or cause an inconvenience to the individual or institution”. This, she said, means that “inconvenient truths can thus be classified away, safe from scrutiny”.
A major concern for all opposition parties is a definition in the current draft of the Bill that gives the heads of all organs of state the power to classify information. According to the Institute for Democracy in Africa (IDASA) there are art least 1000 bodies that will have the right to file information as confidential, secret or top secret under the proposed law, which prescribes minimum prison sentences for all who leak or receive classified information, even innocently.
The list it gave the ad hoc committee drafting the bill includes all universities, state-owned corporations such as Eskom, the South African Weather Service, the Johannesburg Zoo and the Voortrekker Museum.
The opposition African Christian Democratic Party submitted that the definition of organs of state be narrowed down, along with that of “national security” as a cause for classification. “These amendments together with the insertion of a public interest defence would make the information Bill constitutionally more defensible,” ACDP MP Steve Swart said. He pointed out that the Protection of Access to Information Act (PAIA) already allows for the disclosure of information on defence, security and foreign relations if it is in the public interest. “Clearly, if documents can be released under PAIA in the public interest despite the threat that the contents pose to national security, it would be contradictory and unfair in parallel circumstances to criminalise the access, disclosure and continued possession of classified documents that are significant for the public.”
The IFP’s Oriani-Ambrosini also called for the Bill to be harmonised with PAIA and for a clause to be inserted stating that information can be classified only if its release objectively posed a clear and present threat to national security. He said the opposition feared that the ANC would at the end of the day ignore a wealth of submissions from the opposition, media and rights activists criticising the Bill and ram it through Parliament in a repressive form using its majority. If this happens, a Constitutional Court challenge is widely expected.
Smuts said the Bill would “crash for constitutionality at the first hurdle” but Oriani-Ambrosini was less sure a legal challenge would succeed because of the limitations clause in the Bill of Rights. He said Parliament had a moral duty to go beyond what is merely constitutional and internationally acceptable and pass a law protecting transparency and freedom of speech. “We live in a season driven by securocrats… best practice is not good enough to protect transparency.”