The ANC’s proposed amendments to the Protection of State Information Bill appeared to be a step in the right direction, but will be studied carefully, the SA National Editors’ Forum (Sanef) said on Friday.
“It seems clear that members of the committee have decided that the legislation must reflect the fact that the vast majority of those who made submissions on the bill called for a public interest defence to be inserted, along with other important changes,” Sanef chairman Mondli Makhanya and the forum’s media freedom chairman Nic Dawes said in a statement, the SA Press Association reports.
“Among other changes, the committee has proposed an exemption from legal liability for the disclosure of classified information that reveals ‘criminal activity’,” they said. “Sanef will study this and other proposed changes carefully, to determine whether what appears to be a step in the right direction goes far enough to satisfy our serious concerns about the potential negative consequences of the proposed legislation for freedom of information, freedom of speech, and the health of democracy.”
On Thursday African National Congress members of the National Council of Provinces (NCOP) ad hoc committee processing the bill proposed that section 43, which criminalises revealing classified information, make an explicit exception for cases where “such disclosure reveals criminal activity”.
Under the proposal, this section would also enable those charged with disclosure to argue in their defence that the information was wrongly classified to begin with.
The ANC also moved to amend section 49 of the draft act, which has been widely criticised for criminalising the disclosure of information relating to any state security matter. The proposed change would make it a crime only to reveal classified state information relating to security matters.
The Right2Know (R2K) campaign said that despite encouraging signs, ruling party MPs made it clear on Thursday that they were not ready to deliver a full public interest defence. In the latest formulation, they explain, those exposing state secrets would face fines or up to five years in prison, unless they were protected by South Africa’s existing (though inadequate) whistle-blower protection laws, or unless the exposure revealed unlawful activities, or was made to fulfil responsibilities handed down by law.
R2K spokesman Murray Hunter said this protection only applied to the offence in clause 43, and had not yet been made applicable to offences contained in clause 36, 38, and 49 -– offences which carry penalties of between five and 25 years, and currently have no public interest defence. “In other words, this protection is an improvement, but is not meaningful until it is extended to all offences contained in the bill,” said Hunter.
He said in the ANC’s proposed amendments, crimes of “espionage” and “hostile activities” are still sufficiently far-reaching that anyone who exposes information that could “directly or indirectly” benefit a foreign state faces severe prison sentences of up to 25 years. “This still incriminates journalists and whistle-blowers who are acting in the public interest, even if it may be intended to apply only to true acts of espionage. ”
He said two improvements to these sections have been to remove prescribed minimum sentences, and to amend the offences so that one is only guilty of a crime if one “knew” their disclosure may benefit a foreign state. Clauses 15 and 44, which make mere possession of classified information a crime, remain. And, the department of state security is still given complete protection in terms of clause 49.
Alf Lees, Democratic Alliance member for the NCOP, said the proposed amendments do provide some protection to journalists and whistle-blowers, but still don’t go far enough. He welcomed amendments which propose that journalists and whistle-blowers be protected from prosecution if they reveal information which discloses criminal activity, and that minimum sentences be eliminated. But the DA remained concerned about areas such as the definition of “national security”, and offences such as the possession and disclosure of classified information, SAPA added.
It regarded the committee’s decision on Thursday to extend its lifespan from May 17 to June 30 as a victory, following a formal request by DA leader in the NCOP, Elza van Lingen. The African People’s Convention (APC) welcomed the “bold move” taken in making the proposed amendments and was glad that issues of public interest had been looked into. “We agree that media should be constantly monitored and regulated. However, declaring war against investigative journalism and whistle blowing will not help us realise our dream of a corruption-free South Africa,” said APC spokesman Patrick Sindane.
The Congress of the People (Cope) chief whip in the NCOP, Dennis Bloem, said: “This is a small but important victory. The attempt by government to muzzle the media and punish whistle-blowers to conceal scandals and corruption has already been dealt a blow. The battle, however, has not yet been won.”