Upholding national security is not a matter of choice but an obligation placed by section 198 of the Constitution on both the national executive and Parliament, Minister of State Security Siyabonga Cwele says.
Introducing the second reading debate on the Protection of State Information Bill in the National Assembly yesterday, Cwele said the draft law will replace the Protection of Information Act 84 of 1982.
“Since 1994, our country has been facing an increasing threat of espionage because of inadequate provisions in the 1982 Act. The foreign spies continue to steal our sensitive information in order to advantage their nations at the expense of advancement of South Africa and her people. The African National Congress government [will] never allow such undermining of our national security to continue.
“We have, through sections 36 to 38 of the Bill, made espionage a serious offence that will be a deterrent to both foreign spies and their collaborators. However you won’t find foreign spies openly marching in the streets of Cape Town complaining that we are removing their easy access to our sensitive information, but they will fund their local proxies to defend their illegality,” Cwele said in apparent reference to the Right2Know campaign and other civil society organs that have agitated against the current and previous drafts of the law. In her response to Cwele’s speech, Democratic Alliance MP Dene Smuts told Cwele his comment was paranoid.
Cwele continued that the ANC “believes that the changes made to the Bill are a correct response to the valid concerns raised by fellow South Africans during the protracted engagements. The amendments continued to ensure a fine balance between secrecy and openness that are the essential pillars of national security in a democracy,” the minister said.
“This Bill is not about regulating the media. There is no single mention of the media in this Bill”. Neither is this Bill about covering up corruption,” Cwele said about two major civil society concerns about the law. Let me take this opportunity to re-iterate that … we remain resolute and steadfast against corruption and fraud. Section 49 of the Bill prohibits and criminalises improper classification with imprisonment of up to five years. The amendments made by the ad hoc-Committee [of the National Assembly processing the Bill] further enhanced the alignment with the Promotion of Access to Information Act as well as Protected Disclosures Act. The establishment of the Classification Review Panel act as a further deterrent to the abuse of classification of information.
“We currently have no remedy to rising threat posed by information peddling. This is where fabricated information is introduced to the organs of the state with the ultimate aim of gaining a financial reward or causing disunity in government. It often comes in the form of exaggerated yet unsubstantiated threats or conspiracies. In the early days of this new dispensation, you heard about the Meiring Report, which led President [Nelson] Mandela to appoint the Mohamed Commission to investigate claims that some in the ANC were plotting to overthrow the democratic government, and were sponsored by the late Michael Jackson. The Commission found the allegations to be a mere fantasy. Subsequently, many other such conspiracy reports were investigated and again found to be baseless.”
The Bill further introduces the notion of protecting valuable information. “Valuable information is the non-classified state information that requires protection from alteration, loss or destruction in order to prevent individual hardship to our people. I am certain that each honourable Member of this House has heard from our respective constituencies of difficulties our citizens experience when their birth certificates, identification documents or driver’s licences are falsified, manipulated or destroyed. In the recent years, we had cases where unscrupulous individuals hijack companies worth millions of Rands, by illegally altering the information in the company registry. Sections 5, 8, 9 and 46 of the bill bring relief to the public by protecting these databases in the hands of the state,” Cwele said.
The Bill also introduces a system of declassification of sensitive information. “It introduces a practice and culture of regular reviews of classified state information. There are compulsory reviews after 10 years and mandatory declassification after 20 years unless there is compelling circumstance to prevent such. The ANC introduced an amendment establishing the Classification Review Panel, an independent body, accountable to Parliament, charged with overseeing that classifying authorities comply in this regard. This provision further enhances the constitutionality of the legislation.
“Honourable Members, for the completeness of record and for the truth’s own sake, it needs to be highlighted that there are two demands that have been made that we have found impossible to accommodate in this Bill. T hese are public interest defence and public domain defence clauses.
“A public interest defence is a defence which allows a defendant who disclosed classified or protected information to avoid criminality, by claiming it was in the public interest to do so. The question is who determines such public interest? If the court finds there is no such public interest after such disclosure is made, the state will have no recourse as the harm will have been done as a result of such disclosure.
“We have looked at international best practices and there is no country which practises such reckless practice,” Cwele said. “It has been persistently rejected in the USA over a long period. The British once accepted but quickly rejected this addition…” Cwele says the Bill has several inbuilt mechanisms and overrides for public interest protection.
“The second one we cannot accommodate is ‘the public domain defence clause’,” Cwele said. He noted the Constitutional Court in Independent Newspapers (Pty)(Ltd) v Minister for Intelligence Services and Others (2008) stated: “Whether or not a document classified ‘confidential’ has been disclosed to some degree in the public domain is a relevant but not decisive factor in determining whether the document deserves continued protection. This is so because a leaked confidential document does not lose its classification. If it were so, people may be encouraged to reap the benefit of their own misconduct by leaking classified or protected documents and thereby rendering the documents beyond the protection they may deserve. However, the fact that the contents of the document has been referred to in public is not alone sufficient reason to order that the entire document should be accessible to the public.”
The Bill is expected to be put to the vote next week after the ANC held back in September, saying more time was needed for input. However the Right2Know campaign, which opposes the Bill, said this week that “no public consultations have been conducted” and that promises by the ANC chief whip had been “utterly empty”. “It is clear that parliamentarians are preparing to vote on the Bill without substantial changes,” it said. “We condemn attempts by securocrats to spin these demands as ‘nice-to-haves’.”
Smuts expressed satisfaction at some recent changes to the Bill. “What may be classified? Only sensitive information actually likely to cause demonstrable harm to the national security at three thresholds of damage [confidential, secret, top secret]. Our only remaining problem is the fact that the top secret level is not sufficiently distinguishable from the secret level. That is 99% of what the DA argued.
“How is the national security defined? It is, as it should be, largely about keeping us safe against various forms of force. It is 95% of what [DA MP] David Maynier argued [for] and specifically excludes lawful political activity, advocacy, protest or dissent.
“What may not be classified? What were once non-binding directions have at my request been turned into conditions, and constitutionalised: whereas the 2008 version asserted that secrecy exists to protect the national interest, the provision now reads, on our formulation following the International Covenant on Civil and Political Rights, that secrecy is justifiable only when necessary to protect the national security. All of us consider this ‘conditions’ clause to be the real breakthrough in the Bill,” Smuts said.
“Who may classify? Only the security services, as we argued (as against all 1001 organs of state), with the Minister allowing other departments on good cause shown to opt in after gazetting that fact.
“When does declassification occur? We were ready to adopt Dr Verne Harris of the Nelson Mandela Foundation’s recommendation for self-executing declassification. But do not underestimate the effects of the declassification provisions which we have adopted against the new, strict criteria; or the reporting and reviewing requirements. The creation of the Independent Review Panel is the ANC’s idea, with the opposition invited to draft, and [African Christian Democratic Party MP] Steve Swart doing the bulk of the work. The panel is independent and it can review, set aside and instruct reclassification.
“Why, despite all this, will we vote against this Bill? Because we think the offences, especially of possession and disclosure, and especially in respect of the intelligence services, offend against the right to receive and impart information. Why is there a separate offence of possession and disclosure in respect of the intelligence services, but applicable to all persons? Let me quote one last time the Rev. Frank Chikane when he wrote (in a series for Independent Newspapers) that “corrupt intelligence services are the most dangerous threat to the security and integrity of the state”.
Maynier said “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.