Secrecy Bill stands over to next year

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Work on the controversial Protection of Information Bill has been postponed until early January. Chairman of the ad hoc committee redrafting the Bill, Cecil Burgess, says the committee will reconvene in the second week of January to deal with outstanding points of argument around its provisions on classifying information.

State law advisers will in the meanwhile continue work on harmonising the draft law with the Promotion of Access to Information Act (PAIA) and other legislation, the South African Press Association reports. At issue is which officials will have the power to classify data, how to define national security as a criterion for withholding information, and the penalties for publishing state secrets.

The current sixth draft of the Bill retains minimum sentences for contravening the act — a provision strongly opposed by the Bill’s critics. Steve Swart of the African Christian Democratic Party argued that mandatory minimum sentences should be retained in the Bill only where it dealt with espionage. But, as with “national security”, MPs were still not united on how to define espionage, said Dene Smuts of the Democratic Alliance (DA).

Swart said the committee had come a long way since July when the draft law drew comparisons with apartheid-era laws during sometimes heated public hearings. Since then, he said, the majority African National Congress (ANC) had heeded calls to remove from the Bill the nebulous notion of “national interest” as a justification for classification. A provision that would have allowed commercial information to be classified was also binned. It had been criticised as a recipe for concealing corruption, SAPA added.

Swart said further gains included an agreement that PAIA, with its aim of ensuring transparency, would “trump” the Bill. Without this, the Bill would have watered down the access Act because of its status as later legislation. But Swart adds a battle looms as the opposition want this provision strengthened to protect journalists and whistleblowers.

The Right2Know campaign, a civil society lobby group that includes churches, human rights groups, journalists and think tanks, meanwhile urged the committee to ensure the final version of the draft legislation conformed to international good practice. “The Right2Know campaign believes that the final version of the bill should not be a compromise between political parties based on the lowest common denominator.
“It should rather be a law that represents international good practice, and further advances the principles of freedom of expression and the right to access information as envisioned by the Constitution,” it said in a statement.

SAPA earlier this week reported the ANC majority on the committee had rejected the idea of having a retired judge handle appeals against government refusal to release information classified under the Bill. Burgess slapped down a proposal by the Democratic Alliance that a RICA (Regulation of Interception of Communications and Provision of Communication-Related Information Act) judge should rule on appeals against state bodies’ refusal to disclose information.
“The RICA judge is a very special person. He is the person that considers applications from your agencies and deals with interception. He is the judge that has to make an order,” Burgess said. “I would be hesitant to think that that judge would want to concern himself with matters, particularly because he is a retired judge in terms of the RICA Act …. and clearly if you understand what that judge does — it is complicated stuff and particularly also because of the security around it — you would not want him.”

The DA proposal aimed to curb the power the Bill gives the Minister of State Security to withhold information, including the authority to hear appeals for disclosure. SAPA explains opposition parties had hoped that a proposal by the ANC to write the PAIA application process into the Bill could be used to put the appeal authority into the hands of a more neutral party.

Media lawyer Dario Milo, a partner at the Webber Wentzel law firm, said the relief cross-referencing PAIA and the Bill would provide, was likely to be limited. He agreed that the question of where an appeal would be directed was very important. “How PAIA works is that you apply to the public body concerned and they make the decision. The appeal is usually to an appellate jurisdiction within the public body. It will be interesting to see how the committee intends to harmonise PAIA and the information bill as regards the state security minister’s role.”

Likewise, Milo said, linking the two laws did little to provide the media and whistleblowers with a so-called public interest defence enabling them to argue in court that they contravened the provisions of the act to publish information for the greater good. PAIA contains a public interest override, but it is a very narrow articulation of the public interest.

Milo said the requester would still have to go through PAIA’s lengthy application process, with 30-day timeframes for applications and appeals, before they could possibly have the documents declassified and made available. “It is quite different. We are talking about information of importance to the media or to a whistleblower than can be published immediately rather than going through the cumbersome, uncertain and bureaucratic route of PAIA before you get the result.”

He stressed that under PAIA information was only released “after you have gone through all the hurdles” and cited a case involving the Mail&Guardian newspaper that was still in court two years after an initial application to have information released under that Act.

In another development, ANC veteran Pallo Jordan said attempts to narrow media freedom through the bill and the proposed media appeals tribunal were “a fool’s errand”. “Given the policies we have in place and the laws we have in place, if the movement pursues this path it can only result in a lose-lose situation,” the former arts & culture and communications minister said.
“How did it [the ANC] paint itself into a corner where it can be portrayed as being opposed to media freedom? All the legislation we now have, including the Protection of Access to Information Act, was developed by the ANC,” said Jordan, according to a report in Business Day newspaper on Tuesday. “Given all these measures, how does one square that with an attempt to control, or pressure, media into a corner? I say it’s a fool’s errand, it cannot be done, given the commercial, technical environment that presently exists in media.”



He was speaking at a National Association of Democratic Lawyers panel discussion at the weekend, where he was scheduled to speak in favour of the bill and tribunal and went on to say the African National Congress was creating a “lose-lose situation” for itself. Jordan warned that not only was a Constitutional challenge against the Bill possible, but also, that it was very difficult to keep information secret today. “Think about WikiLeaks and documents on the Nato coalition’s activities in Afghanistan or Iraq.