The ruling African National Congress (ANC) bowed to pressure on the Protection of Information Bill on Friday and promised major concessions to bring the legislation in line with the Constitution.
The South African Press Association reports the ruling party agreed to restrict the power to classify, which it had previously sought to extend to all organs of state, to bodies dealing directly with security and to scrap mandatory prison sentences for leaking secret information. “We believe, and this is a formal proposal from the ANC, that the scope of application of the Bill must be drastically reduced in so far as it applies to the authority to classify information,” ANC MP Luwellyn Landers said. “The minimum sentences in the Bill, we propose be removed,” he added of the provision widely seen as a threat to the media and whistle-blowers.
The ruling party also agreed to appoint a retired judge to review classification, allowing independent oversight rather than leaving all power in this regard with the state security minister.
The concessions address three of the main objections raised to the Bill by activist, academics, journalists and former ministers in the biggest outcry triggered by legislation since the end of apartheid.
Landers, who has led the ruling party’s arguments in the committee drafting the Bill, spelled out the ANC’s revised position a day after Parliament extended the deadline for the completion of the Bill by three months. He said the rethink was a reaction to serious concern expressed by senior ANC members and civil society in the past six weeks. “It was everybody, Luthuli House, NEC [national executive committee] members, civil society, the Nelson Mandela Foundation, Cosatu.”
Landers revealed that a member of the ANC’s NEC, whom he did not name, had told lawmakers in no uncertain terms to go back to the drawing board, SAPA added. “He said, ‘What the hell are you doing?’. It was strong language, I’m toning it down.” He said the ANC had heeded calls that the Bill could be used as a tool to cover up corruption. “We want to state in very clear terms this morning that we are concerned about the possible abuse of the provisions of this Act for the purposes of hiding corrupt activities.”
He said the Bill should be redrafted to ensure those who abused it to this end would suffer strong sanction. “So we must do everything possible to ensure that we put in the Bill provisions that not only penalise stringently any such attempt, but methods that could be used to prevent that.”
Opponents of the Bill had termed it a return to apartheid-era state secrecy and vowed to refer it to the Constitutional Court for review, SAPA said. Up until now, the ANC’s response to the threats has been that chief state law adviser Enver Daniels was satisfied the Bill would pass constitutional muster. “It is not enough for Enver Daniels to come before the committee to say it is constitutional. I believe, every single clause in this Bill, we have to ensure that it meets that requirement,” Landers said on Friday. Opposition parties welcomed the concessions, but added concerns remained, including the need to consider a public interest defence to protect the press and whistle-blowers.
“It is a vindication of the parliamentary legislative process in which we talk till we hear each other. It is good news indeed,” Democratic Alliance (DA) MP Dene Smuts said. Smuts added the DA has been arguing since “the first sitting of the first ad hoc committee on the Protection of Information Bill in 2008 that a classification law cannot apply to all organs of state.”
Smuts said the application clause of the Bill will now be narrowed to the security and intelligence departments, “as we suggested”. The MP added the majority party has also accepted that other government departments, instead of automatically being allowed to classify information, be allowed to apply for the right to classify. “In this, we have listened to the ANC’s arguments and those of the Minister of State Security, who argued that there are classes of information outside of the Security Department which require classification, and cited Science and Technology secrets as one such class of information. Our series of parliamentary questions to government departments revealed that the Department of Science and Technology does indeed engage in copious classification. It goes without saying, however, that any unjustifiable classification in a Department such as Science and Technology, or any other, should not be permitted, and to this end the classification criteria, definition of national security and appeal mechanism remain crucial.
“Various civil society initiatives have independently supported us on this particular issue. IDASA undertook a count of the organs of state covered under section 239 of the Constitution (which the State Law Advisor protested would be like counting the grains of sand on a beach), and found 1001 organs, ranging from the Johannesburg Zoo to the Natal Sharks Board. Advocate Nichola de Havilland of the Centre for Constitutional Rights wrote an authoritative opinion on the unconstitutionality of the broad scope of application, which goes against the requirements for openness that permeate our Constitution, encouraging a culture of opacity and its corollary, the abuse of classification powers,” Smuts said.
“It is important to note that, although we have now won the battle for narrowing the scope of application, and even though the classification criteria and thresholds have been accepted almost word for word, the definition of national security, which forms the basis for all classification, has yet to be resolved. The Intelligence services, more than any other organ of state, must not be allowed to classify information safely beyond scrutiny. The Rev. Frank Chikane, the former Presidential director-general, once said that a corrupt intelligence service would present the greatest threat of all to national security, and we will do well to heed his words.”
Murray Hunter, the coordinator of the Right 2 Know Campaign launched in opposition to the Bill, said the concessions were a bold move in the right direction but activists would watch closely whether lawmakers followed through on promises to limit the extent of classification of information, SAPA added. “While they are proposing to limit the scope of the bill to the security cluster, we must now see that the cluster is limited in its power to classify information.”
IDASA analyst Judith February said she was cautiously optimistic about “what seems to be a significant shift” forced by popular opposition, Cosatu’s objections and poor press abroad.
“There seems to have been an incremental effect …We will certainly keep up the pressure to see that the final product respects not only the Constitution but the Promotion of Access to Information Act.”
News service I-Net Bridge reports the Washington DC-based Freedom House has downgraded the South African media’s status from “free” to “partly free”. Freedom House’s press freedom index shows that a total of five countries in Africa were rated “free”, 19 “partly free” and 24 “not free”. SA now lags behind Sao Tome & Principe, Ghana, Cape Verde, Mali and Mauritius.