Secrecy Bill headed for delay

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The controversial Protection of Information Bill being pushed by the Ministry of State Security will likely not become law this year, Cecil Burgess, the chairman of the Parliamentary ad hoc committee overseeing the passage of the draft legislation says.

Burgess says this is because the Bill needs redrafting to narrow its scope. Burgess told the South African Press Association his committee has agreed to take as a starting point for a new draft, proposals by State Security minister Siyabonga Cwele to remove two highly-contested clauses. “The minister of course does not have the power to amend the bill, but I would suggest that we use some of his concessions as a starting point for a new draft,” he said.

Cwele in September responded to a national outcry over the draft act by saying he favoured dropping the nebulous notion of “national interest” as cause for classification, as well as a clause allowing for the classification of commercial information.

SAPA adds several other points of contention remain, but a statement by ANC stalwart Vytjie Mentor on Friday suggested the ruling party could be open to further persuasion on the draft act. This was also suggested by National Planning Commission member Joel Netshitenzhe in an interview in London this week.

Mentor told fellow MPs they should ensure that the bill is not used to conceal corruption and silence the media – two of the main criticisms raised in public submissions by rights activists, the legal fraternity and the press. Nor should classification be indefinite, or be allowed to undermine South Africans’ constitutional rights, she said.”We will also have to address the concern of what will be the impact of this bill on the life of ordinary South Africans, and in various fields of life, like in the sciences, in print media, people who write, etc.
“Those should be the key things we should bear in mind in the final stages of this bill… we do have a responsibility to allay those fears that are out there.”

Democratic Alliance MP Dene Smuts, also on the committee, says using Cwele’s suggested changes is as good a starting point as any other, but argues that the ambit of the Bill needs to be cut to the bone. “What the minister said is academic. It is we who decide what goes into the Bill for classification… As far as I am concerned, we can delete vast sections here.” Smuts suggested that MPs also excise clauses calling for the protection of valuable information and personal information.

The latter is the ambit of the new Protection of Personal Information Bill, which is also still on the drawing board, but Cwele has argued that it should be included here as well to protect people from crimes such as identity theft. Smuts criticised Cwele’s understanding of the Constitution as lacking, and said MPs must make clear that “you only infringe on people’s rights to receive and impart information when it is necessary for the sake of security”.

Inkatha Freedom Party MP Mario Oriani-Ambrosini said lawmakers should proceed with the greatest caution because the balance between human rights and security dictates had “become the issue of the century. I will not be happy if we just make it constitutional… The matter we are dealing with is the soft underbelly of the Constitution… we need to go no farther than look at what happened in the United States, Canada and the UK… how weak the Constitution has become when dealing with security issues,” he said.

Oriani-Ambrosini urged MPs to reconsider one area in which Cwele remains recalcitrant — the inclusion of a public interest defence clause. It would allow whistle-blowers and journalists who publish secret information under pain of a maximum jail sentence of 25 years, to argue that they did so in the public interest. “And it is not about the media, it is about we, the people. What is important to me is to have an affirmative defence against the erroneous classification of information. Otherwise you can classify a grocery list,” he said.

The ministry earlier in the week said government officials wishing to classify information under the proposed Bill will have to adhere to strict guidelines and need a clear and justifiable reason to do so. It will also be an offence to incorrectly classify information. “We reiterate that the Bill makes it an offence to incorrectly classify information to cover corruption, maladministration, incompetence or inefficiencies and the public would have to work with government to ensure this is not the case,” the ministry’s Head of Communication Brian Dube said in a statement.
“We are in agreement about the need to ensure that free flow of information remains that oxygen and the lifeblood of our democracy and that any limitations to such a right must be based on legitimate national security grounds that conform to the international best practices,” Dube added.
“The Minister is on record indicating exactly what information is to be protected, adding that protection does not equal classification. Officials who will be classifying information will have to follow specific guidelines. Over and above this, they will have to apply a two-part test – which requires that there must be clear, justifiable and legitimate national security reason(s) to do so and the need to protect the information once classified. This would, in itself, provide reasons as to why certain information must be classified.

Dube said that with the ongoing interaction with key stakeholders in civil society around the intentions and the provisions of this bill, it appeared there was some form of convergence on the matter, barring a few points which remain areas of contestation. “It is critical for the public to be reminded that the Bill is evolving with the proposals that the ministry has tabled in Parliament … These proposals include the removal of such concepts as ‘national interest’ and ‘commercial information’, as basis for classification. These are some of the fundamental changes that will result in a Bill that is markedly different, clearer, leaner and better than the one currently on the table.
“To dismiss such concessions as ‘cosmetic’ when there was a big outcry on their inclusion in the fist place, is disingenuous and a deliberate attempt to mislead the public on government’s willingness to listen to the public when it speaks and to apply its mind to the issues presented,” Dube said. Dube adds that on the application of the Bill, “we maintain the view that the challenges that have been identified as requiring government’s intervention are not limited to a particular cluster of government but cut across all levels, including parastatals. Limiting the application, as some argue, will not address the clear and present danger of threats and real challenges that have been identified.”
“The application of penalties for unauthorised disclosure applies to those who have been found to have broken the law. It’s not correct to argue, as some have continued to do, that they will apply to society at large. It is critical to understand that when you legislate, the law becomes applicable generally, meaning you can’t legislate for a certain sector of society. 

Cwele last month charged that opponents of the Bill believed South Africa had no legitimate national security to protect. “Clearly, this is far from the truth,” Cwele told MPs in late October. He added the approach adopted by government towards the Bill was “under-written” by the International Covenant for Human Rights and the European Covenant on Human Rights. It was also in line with the African Charter on Human and People’s Rights, the South African Press Association reported him as saying.

Cwele last month said the Bill was a necessary tool that government required to tackle growing challenges such as espionage, information peddling and the protection of critical databases in government through cyber crime. Cwele said the media seemed to hold “preconceived views” about the intentions of the bill and that the government was concerned about the image of the country that had been created by these articles.

SAPA noted that Cwele depicted South Africa as a country riddled with spies and information peddlers that sought to destabilise democracy, undermine national food security and steal valuable commercial information. “Some of their collection targets include profiles of senior government leaders, such as the president, the deputy president, ministers and deputy ministers and the leadership of the ruling and opposition parties. These foreign intelligence agents sought to “unduly influence the evolution of politics and future plans of South Africa,” he added.



Cwele dismissed protest from the Democratic Alliance that his claims smacked of paranoia dating from the Mbeki era. “There is no political paranoia. We are talking about political reality,” he countered. Baseless rumours of political plots have already done severe damage, the minister said, citing the “Browse Mole report” generated during the intra-African National Congress succession struggle between now-President Jacob Zuma and his predecessor Thabo Mbeki, as an example. “Consequently these peddled claims have caused untold disruptions and divisions within the government system, ruling party and its allies and have negatively affected the project of democratisation of the country.”