South Africa to Resume Work on POIB Next Year

26 November 2010

A South African parliamentary committee will resume work in January 2011 on the controversial Protection of Information Bill.

Committee chairman Cecil Burgess said members would reconvene in the second week of January to resolve remaining points of contention around the bill, which would provide for the classification of state information and criminalize the disclosure or publication of secrets.

While some concessions have moderated the bill, critics are still pushing for inclusion of a public interest defense and other changes.  In recent weeks the relationship of the proposed law with the existing access to information law has become a major topic of discussion. Among other developments, the African National Congress rejected a proposal that a retired judge handle appeals against government refusals to release information. Committee action on the bill this year ended Nov. 25.

Articles about the break in the action include a News24 report and a TimesLive article.

Assessing the situation, Steve Swart of the African Christian Democratic Party said in a statement:

The ACDP welcomes the fact that this contentious bill, otherwise known as the Secrecy Bill, will not be rushed through parliament this year. Whilst good progress has been made in narrowing the ambit of the bill, such as deleting the overbroad references to national interest and commercial information, there is still much work to be done. There has been a large degree of harmonisation with the Promotion of Access to Information Act (PAIA) which protects citizens’ rights to access state-held information.

We are, however, concerned that there is still no public interest defence in this bill to cover situations where a classified document revealing threats to the public interest is leaked to the press, and that information is then published in the public interest – such as relating to corruption or nepotism. That journalist would still fall foul of the offences as contained in the present draft of the bill. This issue still requires attention.

The ACDP will continue to make proposals to narrow the ambit of the bill to deal only with documents that require classification for narrowly defined national security reasons. Access to state-held information should be guided by the provisions of PAIA, with a public interest defence along the lines of the public interest override in PAIA to be included in the draft Protection of Information Bill.

Right2Know Assessment

The Right2Know campaign issued an assessment of the situation in a Nov. 25 statement:

The Right2Know campaign has submitted a letter to Parliament’s Ad Hoc Committee on the Protection of Information Bill (the Secrecy Bill), detailing concerns in the processing of this legislation. The letter urges members of the Committee to ensure that its final days of deliberation for 2010 are used to make vital amendments to the text of the Bill so that it meets the Right2Know 7 Point Freedom Test.

The Right2Know campaign has followed the Committee’s deliberations closely, and while some progress has been made, Committee members have yet to address a number of outstanding issues.

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.

The Committee, which goes into recess on 26 Friday November, is only scheduled to meet again on 18 January 2011, to report back on 21 January 2011. The Committee therefore has only given itself a total of six days in which to rid the Bill of its odious secrecy clauses.

The current version of the Protection of Information Bill fails the 7 Point Freedom Test – a measure based on the principles of our democratic constitution.

The 7 Point Freedom Test:

1. Limit secrecy to core state bodies in the security sector such as police, defence and intelligence agencies.

Thus far, the committee has not agreed upon this limitation, provided for in chapter 1 section 3 of the Bill.

2. Limit secrecy to strictly defined national security matters and no more. Officials must give reasons for making information secret.

We commend the Committee on the elimination of any reference to “national interest” which is now referred to as “national security”. However, the current definition of “national security” remains too vague. Especially, information peddling should not be included in the definition of “national security”, as it remains an ill-defined concept and vulnerable to abuse. To date, the requirement that officials must give reasons for classifying information as secret, has not been addressed by the Committee.

3. Exclude commercial information from this Bill

We commend the Committee on the removal of any reference to “commercial information” from the Bill.

4. Do not exempt the intelligence agencies from public scrutiny.

The Committee has not addressed this issue, as referred to in chapter 11, section 43 of the Bill. We are concerned that the inclusion of section 43 draws a veil over the working of the intelligence services, and will prevent public scrutiny of our spies should they abuse their power or breach human rights. This provision is extraordinarily wide, and pulls a complete veil of secrecy over any and all activities of state security agencies, making effective public oversight, including by institutions such as parliament, impossible. The clause criminalises not only the disclosure of legitimate secrets, but even information that is currently in the public domain. It unnecessarily gives the State Security Agency a higher level of ‘protection’, thus breaking the principle of general applicability, and therefore this clause should be scrapped.

5. Do not apply penalties for unauthorised disclosure to society at large, only those responsible for keeping secrets.

The Committee has not dealt with this, as referred to in chapter 11, sections 37-39 of the Bill. As it stands, these penalties appear draconian, and are out of keeping with international best practice.

6. An independent body appointed by Parliament and not the Minister of Intelligence should be the arbiter of decisions about what may be made secret.

While the Committee has deliberated on this issue, there has been no final resolution on this very basic mechanism of oversight.

7. Do not criminalise the legitimate disclosure of secrets in the public interest.

While the harmonisation of the Promotion of Access to Information Act (PAIA) and the POIB might mean that there will be a public interest component to applications for information that has been classified (which we commend), this still does not provide a defence for instances where there was genuine autonomous disclosure of information in the public interest. In addition, we are encouraged that the Committee has included a certain amount of protection for whistleblowers as a result of attempts to harmonise the POIB with the Protected Disclosures Act (PDA). However, this still does not meet the test of protecting whistleblowers who are engaged in public disclosure.

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