Cwele to consult media on “secrecy” Bill regulations

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Minister of State Security Siybonga Cwele has pledged the media will be consulted when regulations detailing the introduction of the Protection of Information Bill are drafted. Cwele gave the commitment at a two-hour meeting with the South African National Editors’ Forum (SANEF) in Pretoria on Friday.

“The minister said editors would be consulted on the drafting of the regulations to ensure that the law is not used to infringe on the work of media specifically,” Cwele said in a statement issued jointly with SANEF.

He gave the assurance that the government viewed the media as partners in building a modern democracy “even though we compete for information. We need to build more synergy than see each other as opponents.”

The South African Press Association reported the SANEF delegation had earlier set out a number of concerns it still had with the Bill, including its view for the need to insert a public interest defence clause on the publication of classified information, and the establishment of an independent review mechanism for the classification and adjudication of information.

Cwele undertook to take SANEF’s oft-repeated concerns and submissions forward for discussion with the government. He again said the proposed legislation would be a law of general application, without specific conditions applying to the media, because the government had no intention of muzzling media.

SANEF deputy chairwoman Mary Papayya said: “The dialogue was constructive and we welcomed the minister’s transparent attitude and understanding of the role of the media and its importance in our democracy.” SANEF also welcomed “softening” changes already made to the proposed legislation but argued that further checks and balances were required for the value of the changes made to date to be realised. “Minister Cwele gave us the assurance that government viewed media as partners in building a democracy, even though we compete for information,” she said.

The discussion followed a two-day meeting between SANEF last month. SAPA says the Bill is now unlikely to be finalised before Parliament goes into its summer recess this month. Parliament’s ad-hoc committee processing the Bill confirmed on Friday that it had asked the legislature to extend its lifetime to allow work on the Bill to continue next year.

Lawmakers have in recent weeks removed provisions allowing for the classification of information in the national interest and the classification of commercial information. But Eyewitness News
says the contentious piece of legislation still has to be harmonised with existing laws before it can be implemented. It says some opposition party parliamentarians warn it clashes with the Promotion of Access to Information Act which gives citizens the right to apply for the de-classification of information. But chief state law advisor Enver Daniels said in his view the Bill and Act are in sync.
“We recognise not only the hierarchy of PAIA, but we reinforce the right of anybody to seek access to classified information. I think there is a harmonisation and possibly we need to look at whether we can further refine those sections,” he said.

Ad hoc committee chair Cecil Burgess indicated that the bill will not be finalised this year as there are still concerns that need to be addressed and amendments that need to be made. He said this proves they are not hasty in pushing the bill through. “We move as fast or as slow as we are required to move because these are serious things, so from my side as the chair there is no rush,” he said.

The South African Pres Association added state law advisor Carin Booyse said the issue was whether there was a hierarchy of legislation, and which law would hold sway where they clashed.

There is a presumption in South African law, she said, that the bill, being the most recent legislation, would trump PAIA if the two were seen to be in conflict. But MPs have said PAIA was a Constitutional enabling act, giving effect to the Billof Rights. As such, it trumped other, ordinary, laws. It says the Inkatha Freedom Party’s Mario Oriani-Ambrosini argued that to remove any confusion, “the bill must be made subject to PAIA in case of any inconsistency”.

The African Christian Democratic Party’s Steve Swart said PAIA enjoyed pre-eminence as “a constitutionally mandated piece of legislation” and that MPs therefore needed to respect the very specific provision it makes for releasing information in the public interest. Dene Smuts from the Democratic Alliance said it was explicitly clear that “this law which gives effect to the right to access to information applies to the exclusion of any other law that tries to restrict disclosure of records and any other law that is materially inconsistent with an object of this act. “It is our duty therefore to write a law that can sit alongside PAIA.”

But ANC committee chairman Cecil Burgess said there “was a misguided view that MPs did not have the right to write laws that would override PAIA, or to change it outright.”

Melissa Fourie, director of the Centre for Environmental Rights, a Cape Town- based nongovernmental organisation, told the Business Day environmental rights guaranteed in the constitution can be realised only with access to information. “As things stand, civil society organisations and communities already face enormous obstacles in gaining access to environmental information,” Fourie said.

The government typically insists civil society organisations submit requests in terms of the Promotion of Access to Information Act, she said, even if it relates to information that should be in the public domain, such as permits and environmental management programmes. The government and private enterprise often fail to comply with the act, with many applications unanswered, or answered only after lengthy delays. “We have examples of cases where it has taken more than a year for a community to confirm whether a particular facility has a permit.” She said the government has failed to create a culture of transparency and accountability on environmental governance.



Mineral Resources Minister Susan Shabangu recently refused to provide details to Parliament about action taken against mining companies for environmental noncompliance, due to the sensitive nature of the information and the potential affect on company share prices, the paper noted. Fourie said this information is vital to determine whether miners are complying with permits, whether they are polluting, and whether the Department of Mineral Resources is enforcing the law. She said shareholders are also entitled to this information.