Summary on the Progress of South Africa’s Protection of Information Bill

9 November 2010

By Mukelani Dimba

Dimba is the Deputy Executive Director of the Open Democracy Advice Centre

Introduction

When the South African government introduced the Protection of Information Bill of 2010 [B 6-2010] to parliament in March 2010 no one would have predicted that such action would trigger mass-based civil society action that some say has not been seen since the dying days of Apartheid. It has been reported that the AVAAZ advocacy group has collected over 40,000 signatures for a petition against the Bill, the Right-To-Know campaign group has support of over 9,000 individuals and 350 institutions and the opposition party, the Democratic Alliance recently delivered a petition supported by close to 30,000 South Africans. At stake are constitutionally enshrined principles of transparency of the public service, accountability and open democracy which are seen to be under threat from the provisions of what has come to be referred to by its critics as the Secrecy Bill.

The initial concerns about the Bill centred around the application of the Bill to cover all organs of state, the overly broad definition of the concept of “national interest” which could be used as ground for classification of information, the inclusion of commercial information as a category of information that can be classified, the criminalization of disclosure of classified information even if it’s in the public interest and the absence of an independent review mechanism on classification decisions.

Initially the government seemed unmoved amid such widespread criticism and even called in senior government legal advisors to state before parliament that the Bill in its form would pass constitutional muster. This was a patent and untenable position given the vocal and widespread outcry domestically and internationally regarding the unconstitutionality of the provisions of the Bill. There was widespread criticism of the Bill from all walks of life and spheres that included domestic and international non-governmental organizations, domestic and international media freedom structures, trade unions, faith-based organizations, business formations, foreign and diplomatic representatives to South Africa, the African Commission on Human and People’s Rights and even former ministers of the South African government including former Minister Ronnie Kasrils who had introduced the 2008 version of the Bill that was defeated by vocal civil society advocacy. It soon became clear that the South Africa government was on its own in thinking the Bill was consistent with the constitution.

  1. 1.     Changes to the draft Bill

It is no wonder then that the government came back to parliament on 22 October 2010 to state its new position that accommodates improvements in the Bill (tagged “P.I.2” by the committee). Government’s concessions were on a number of grounds including:

a)      the removal of the concept of protection of information in the national interest,

b)     The removal of the section related to the classification of commercial information, and

c)      The public interest override for review of classification decisions

1.1   Definition of national interest

Government has agreed to the call for the removal of the concept of “national interest” as grounds for classification of information and limit classification of information to clearly defined national security concerns. While this is a major development, deliberations have since hit a snag in that the ruling African National Congress (ANC) and opposition parties lead by the DA cannot agree on a formulation of a definition of what constitutes national security.  The ANC has tabled a definition that is seen to be consistent with the Johannesburg Principles on National Security, Freedom of Expression and Access to Information.  The formulation reads: 

’national security’ means the protection of the people of the Republic and territorial integrity of the Republic against:

(a)  The use of threat of force;

(b)  The capacity of the republic to respond to the use of threat of force;

(c)   The following acts:

(i)    Hostile acts of foreign intervention

(ii)    Terrorism

(iii)  Espionage

(iv)   Information peddling

(v)     Sabotage, and

(vi)   Violence

Whether directed from, or committed within, the Republic or not, and includes the carrying out of the Republic’s responsibilities to any foreign country and international organizations in relation to any matters referred to in this definition. “ 

It is a formulation that opposition parties could be persuaded to agree to provided that the ruling party drops reference to “information peddling”. The concept of “information peddling” is not defined in the ANC’s submission but ANC members of parliament have alluded to the fact this is an act of collecting intelligence and falsifying it in order to deceive the recipient(s) of the information. Information peddling is done for the purposes of personal, political or commercial gain by the person distributing that information.

 According to the ANC, an illustration of this phenomenon is the infamous top secret “Browse Mole Consolidated Report” which was leaked to the media by elements of the South African intelligence infrastructure. The Browse Mole report had contained allegations of a conspiracy to overthrow the government of the former South African President Thabo Mbeki by his then arch political rival the current President Jacob Zuma. The report alleged that Zuma was being given political and financial support by President Jose Eduardo dos Santos of Angola and Colonel Muammar al-Gaddafi of Libya.  When the report was leaked to the media, the Presidency dismissed it as work of “information peddlers who aimed to discredit the government”.  However it was soon discovered that the Browse Mole Report was compiled by agents of the now defunct organized-crime fighting Directorate of Special Operations otherwise known as “the Scorpions”. It has been alleged that the Scorpions were used by various factions of the ruling party to fight leadership battles which culminated in the defeat of Mbeki by Zuma for the leadership of the ANC in 2007 and the disbandment of the Scorpions in 2008 by the care-taker President Kgalema Motlante.

 The opposition parties have stated that there could be consensus on the definition of national security provided either the ANC agrees to the removal of the concept of “information peddling” or the concept is clearly defined in legal terms. At the time of compilation of this summary, the ANC had not tabled a definition of “information peddling” nor indicated that it will drop this concept in the definition of national security.

1.2   Commercial information

The government and the ANC in parliament are in agreement with opposition parties – except the Inkatha Freedom Party – and civil society organizations on the removal of the provisions pertaining to the classification of commercial information. However there could be a possibility of classification of commercial information if the harmonization of the Bill and Promotion of Access to Information Act of 2002 (PAIA) is done through a catch-all provision that states that records that fall within categories of information that enjoy mandatory exemption from disclosure in terms of PAIA must be classified. Section 36 of PAIA provides for a non-mandatory exemption information that relates to commercial information of third parties and section 68 provides for a non-mandatory exemption of the same information if held by a private body, however both sections are subject to a public interest override in terms of sections 46 and 70 of PAIA.

 There is obviously a need for caution to be taken when crafting clauses that aim to harmonize legislation that regulate information disclosure policy so that such provisions do not allow for things that have been removed from the Bill to creep back in through other legislation. 

1.3   Protection of Whistleblowers

 The Bill (P.I.2) still contains harsh sentences for people that disclose or publish classified information. Even though the government has agreed to a public interest override for requests for information or review of classification decisions, there is no agreement on a public interest defence (from prosecution or conviction) for people that disclose or publish or distribute classified information. This means that both whistleblowers and journalists could still be liable to long prison sentences (up to 25 years) for disclosing or publicising classified information.

 In response to criticism that the Bill violates legal protections provided for in terms of South African whistleblower protection law, the Protected Disclosures Act of 2000, the ANC has called for the Bill to be “clearly aligned with the Protected Disclosures Act, the Companies Act, and other laws that serve to protect whistleblowers”. In response to that, the committee has instructed legal drafters make proposals on how this alignment can be achieved.

 1.4   Institutions to be covered by the law

 The Bill as it is currently drafted will make the Act once passed to be applicable to all organs of state as defined in the Bill itself, a definition that is based on the constitution, the Public Finance Management Act, the Municipal Finance Management Act and the National Key Points Act. This means all public institutions from national government departments, to provincial government departments and to municipalities will be subject to the secrecy law. Critics of the Bill have argued that this is too broad and coverage of the law must be limited to national government departments that have a national security mandate. In parliament this position has been echoed by the opposition DA.

 According to the DA this law should only apply to agencies such as the National Intelligence Agency, South African Secret Service, the South African National Defence Force and the South African Police Service. According to the DA, if as is proposed by the ANC, the bill is aimed at providing for classification of information in order to protect national security then it should stand that its application should be limited to agencies that are concerned with national security matters. However, the ANC has rejected this position on grounds that national security is not the sole preserve of national government departments that are responsible for security matters.

In its written submission to parliament the Open Democracy Advice Centre (ODAC), a law centre that specializes on information disclosure laws, it is argued that public institutions that do not have a mandate for preservation of national security should not be covered by the bill. To illustrate this point ODAC had used an example of the Algoa Bus Company – a small provincial non-profit public entity that provide public transportation services in one of South Africa’s most rural and poorest provinces, the Eastern Cape. According to ODAC, the Algoa Bus Company does not hold any information that can be regarded as requiring classification in order to protect national security and therefore this law should not apply to them and similar public bodies. According to critics of the Bill “the Algoa Bus Company” scenario is representative of the overreaching nature of the current draft of the Bill.

To address what has come to be known as “the Algoa Bus Company scenario”, the ANC has proposed that only a Director-General or equivalent can classify information but a DG can further delegate this responsibility to a Deputy-Director General and no other. According to the ANC, the chief executive officer of the Algoa Bus Company will not classify information and it is believed that this corrects the overreach of the Bill. However the critics of the Bill argue that this does not sufficiently address the Algoa Bus Company scenario because the Algoa Bus Company and other non-strategic public institutions are still covered in the definition of organs of state in the Bill and therefore remain covered in the application of the Bill. This means even though their CEO will not have the power to classify information, the information held by the company can still be classified by someone else such as the DG of Transport or the municipal manager of the council that has a controlling stake in the company.

When the ad hoc committee on the Protection of Information Bill adjourned, the parties remained deadlocked on the application of the Bill to smaller non-strategic public institutions. It remains to be seen if the Algoa Bus Company is in or out in terms of coverage of the Bill.

 1.5   Independent review mechanism

Civil society organizations had called for a provision on an independent review mechanism on classification decisions. This was aimed at preventing the situation where the person that makes a decision to classify the record is that same person that determines the appeal against such a decision. This is currently happening with some PAIA requests leading freedom of information advocates to conclude that the internal appeals procedure in PAIA is superfluous.

 It had been proposed that an Information Commissioner or Regulator be appointed as the appeals authority in term of this Bill. This is an idea that government was not happy with but suggested that it could consider an independent board that reports to the Minister for State Security. However the ANC’s amendments are less than straight-forward in comparison. The ANC has tabled an amendment that authorizes the Minister “to establish mechanisms to assist him/her with both the review and the appeals processes”. This could suggest a committee of advisors on appeals.

  1. 2.     The tagging question

On 17 September 2010, the ODAC wrote letters to members of the Committee alerting them to the fact that the Bill may have been incorrectly tagged as a section 75 Bill while in fact it could be a section 76 Bill. This was in reference to sections of the Constitution which provide that Bills must be tabled for consideration either at the National Assembly or both at the National Assembly (NA) and the National Council of Provinces (NCOP) depending on their effect on provinces.  Bills that must tabled before both chambers of parliament (the NA and the NCOP) are called section 76 Bills. These are Ordinary Bills that will affect provincial administration and competencies. Section 75 Bills are bills that do not affect provinces and do not involve matters that fall within provincial competencies and therefore consideration of these Bills is limited to the NA. If a bill is not properly tagged as a section 75 or section 76 bill, an Act that succeeds it can be struck down by the Constitutional Courts as invalid and unconstitutional as it happened with the the Communal Lands Rights Act (CLARA) of 2004.

Parliament, through the Chair of the ad hoc committee on the Protection of Information Bill and the Speaker of National Assembly, have responded to ODAC’s statement on the tagging of the Bill stating that they are satisfied that the Bill is properly tagged as a section 75 Bill.

  1. 3.     The next steps

The committee has scheduled two more deliberations before parliament rises for constituency and recess periods. According to the committee’s programme, they will continue to consider amendments when they meet on Tuesday 09 November 2010 and then finalise consideration of amendments on Friday 12 November 2010. They have planned to have the house (National Assembly) debate and vote on the Bill on Tuesday 16 November 2010. It is a very ambitious programme. 

  1. 4.     Conclusion

Much to their credit it does appear that both the government and the ANC in parliament have been alive to the criticism of the Bill and have engaged with all of the issues raised. Such engagement does not necessarily mean that government has changed its position on key aspects of the Bill but it has certainly made some important concessions.

Following parliamentary deliberations, it is clear that despite the posturing and political sniping, there exists good probability of the ANC and opposition parties reaching consensus on a number of contentious issues such as the definition of national security. It doesn’t appear that calls for withdrawal of the Bill will find support within the role players in parliament but there is every chance that the Bill can be improved such that passes constitutional muster.  However for this to happen, parliament still remains with the task of ensuring that none of the provisions in the Bill fall foul of the Protected Disclosures Act or inhibit the exercise of the journalistic profession.  If parliament can ensure that whistleblowers are not made worse off now than before this law and that journalist can source information and publicise wrong doing without any hindrance and fear of harsh penalties, then parliament would have ensured that the idea of open democracy remains intact in South Africa.

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