Right2Know Welcomes ANC Concessions on POIB

27 June 2011

The Right2Know campaign has welcomed “concessions” from the African National Congress on the Protection of Information bill.

One key change would narrow the scope of the bill to apply only to security and intelligence services. Other organs of state could apply for inclusion.

Another modification would allow a retired judge to review disputed classification of information.

Also, the ANC agreed to remove the current minimum jail sentences that apply without the option of a fine for the disclosure of classified information, except if espionage is concerned.

The campaign praised the ANC movement, “which we take as a sign that there is a commitment to begin the mammoth task of fixing the Bill.” The statement continued:

 It is a first, but important step, which may signal a willingness by democrats within Parliament and government to push back against an apparent grab for power by securocrats within the state. This would have been impossible without the voice of ordinary South Africans who have led the struggle for the Right2Know campaign over the past year.

The group also was heartened by remarks from an ANC member of parliament that the ANC is committed to ensuring the bill’s constitutionality.

In a briefing note, the Right2Know campaign summarized the proposed modifications June 24:

Limit the application of classification primarily to state security services.

This would mean that only the state security services would have the authority to classify information. In this proposal, there would be an opt-in clause included for other state organs to apply for the authority to classify information. This is an important step in reducing the power of the Bill, as long as the opt-in process is subject to independent oversight. However, even within the state security services there needs to be further discussion to ensure the Bill’s secrecy provisions would only be applied according to a narrow and strict definition of “national security” – the current definition is still extraordinarily broad. The committee still needs to examine clauses which criminalise the mere possession of any information relating to any state security matter whatsoever. These clauses would prevent any kind of public scrutiny of the state security services.

 Include an independent appeal mechanism

The ANC agreed to the appointment of a retired judge as the appeal authority to resolve disputes under the provisions of the Bill. This proposal together with the changes to the review panel also discussed in that meeting is an important step towards ensuring that state security services would be held accountable to the public.

 Removing minimum prison sentences for disclosing state secrets and ensuring that penalties for releasing a state secret are proportional to any harm caused.These concessions are a positive step towards amending the Bill to ensure that whistleblowers and journalists are protected. However, the ANC’s concessions stop short of including an explicit and unambiguous public interest defence for releasing state secrets, which would be vital to protect those who release a state secret to expose wrongdoing. It is also unclear whether or not simple possession of a classified document would still be criminalised and whether the penalties would still apply to ordinary members of the public or only to officials whose job is to keep secrets. This concession means that MPs will have to undertake a complete revision of the penalties clauses as they currently stand.

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