The South African National Editors’ Forum (SANEF) has again threatened legal action if a public interest defence clause is left out of the Protection of State Information Bill. SANEF also took strong exception to Minister of State Security Siyabonga Cwele’s assertions that “foreign spies” were paying civil society groups to oppose the Bill.
“Sanef is one of the groups that oppose the Bill and rejects the minister’s claims as insulting and libellous,” it says. “Sanef not only rejects Cwele’s wild allegations but calls on him to provide the proof to back them.”
SANEF says it remains concerned over Cwele’s refusal to allow the public interest defence clause.
“Such a clause would enable a journalist, whistle-blower, or citizen who disclosed classified information, if charged, to enter a defence plea of publication in the public interest,” SANEF said in a statement.
Last week Deputy President Kgalema Motlanthe voiced appreciation for SANEF’s view that it would be for the courts in every case to decide whether the public interest defence held, the South African Press Association reports. He suggested this created the basis for a “meeting point” on the issue, sparking hopes that such an amendment could be considered for the Bill.
Despite this, Cwele told the National Assembly on Wednesday that the ANC could not support such a defence. “He stated that no other country had such a clause in similar legislation, quietly ignoring the fact that the US and other countries have other mechanisms in their legislation to provide the protection sought,” SANEF fumed.
If Cwele’s latest obdurate stand prevailed and the Bill was passed without the safeguard, SANEF and other critics would have no alternative but to press for the legislation being referred to the Constitutional Court for it to rule on its constitutionality. “The alternative is that important information will be withheld from the public,” SANEF said.
Former intelligence minister Ronnie Kasrils agreed with the editors. “I also fully endorse SANEF’s protest regarding the security minister’s, and other ANC MPs, disgraceful assertion that members of civil society protesting against the Bill are agents of foreign spies,” he said in a statement yesterday. “This is precisely the mind-set that I fear … Consider the impact of such inflammatory statements on members of the intelligence services.” They would be encouraged to adopt a mind-set already noted for “excessive secrecy, exaggerated fears and paranoia”, he said. “The present regrettable and dangerous culture within the intelligence services need to be reformed,” he said.
The Business Day newspaper in an editorial today says the ruling African National Congress’ (ANC’s) stubborn insistence on pushing the Bill through Parliament over the objections of opposition parties and civil society organisations — “is the result of paranoia and discomfort with transparent governance. Both were evident during the second reading debate in the National Assembly on Wednesday.”
The paper says it “is common knowledge that the ANC is fighting a losing battle against the politicisation of the state security and intelligence services, which has already played a significant role in the recall of one president and threatens to get out of hand in the build-up to next year’s elective ANC conference. So the paranoia may be justified as far as the ANC’s dirty succession battle is concerned, but the heavy-handed solution is not. The Bill will not prevent the rampant abuse of state power; that requires a political solution from within the ANC or by its supporters. And the draconian jail terms that would be imposed on those who leak classified documents will not stop foreign spies bent on espionage either; the penalty for spies caught behind the iron curtain during the Cold War was death, yet the place was still crawling with undercover agents.
“Espionage — including the theft of the commercial secrets that give some of our companies a competitive edge — is a reality in the modern world that needs to be taken seriously. But if the government isn’t catching the foreign spies now, why does it think the existence of an onerous secrecy law will change this?
“It is abundantly clear that the media are the real target: the ANC doesn’t like what is being written about the party, the way it operates and the way it and the way its leaders are funded. But instead of changing what it sees in the mirror by doing some soul-searching, it thinks it can avoid the embarrassment of its excesses being exposed by shooting the messenger. And, by resisting the inclusion of a public-interest defence, the party is also attempting to disempower the courts, which would otherwise be called upon to determine whether the publication of classified information was in the broader public interest. ‘Trust us,’ the ruling party is saying. ‘We won’t abuse the privilege.’ Except we know it will, not because it is the ANC but because that is the nature of power in the absence of checks and balances. Information will be classified for the wrong reasons, probably to avoid embarrassment to the party in the event of corrupt governance and, as things stand, the Bill would prevent this from ever being exposed. That is not acceptable in a democracy.”
Democratic Alliance David Maynier told the National Assembly on Wednesday “the question is not whether journalists will go to jail, but which journalist will go to jail first. The ANC wants to cover up unlawful acts, cover up inefficiency and cover up information that may cause embarrassment,” he said. “I have no doubt that if Nelson Mandela were present here today he would have had the courage to join the opposition in speaking out against the ‘secrecy Bill’. The fact is that the ‘secrecy Bill’ amounts to a full-scale legislative assault on the freedom of the press and other media in South Africa.”
In his address Inkatha Freedom Party MP Mario Oriani-Ambrosini slammed the new law for insisting that anyone who comes across a classified document must return it to the authorities or face time in prison. The law “imposes a string of obligations on members of the public to help the government keep the secrets for whatever reason it has failed to keep”, he said. Oriani-Ambrosini also argued it was unfair for MPs, journalists and members of the public to go to jail for speaking about a secret document leaked to them even if they had nothing to do with it being leaked.
Congress of SA Trade Unions (COSATU) spokesman Patrick Craven said if the Bill was passed in its current form, the union federation would challenge it in the Constitutional Court. Craven called for the Bill to be sent back to the South African Law Reform Commission to be rewritten. COSATU, which has a political alliance with the ANC, says it remains concerned that the Bill had been brought back to Parliament without a single public meeting in the provinces as promised by the ANC, Craven said.