ANC Makes Concessions Concerning Secrecy Bill

29 August 2012

The ruling African National Congress in South Africa said Aug. 29 that  it would make several concessions concerning the controversial proposed secrecy bill.

One change will ensure that the bill will not trump the Promotion of Access to Information Act, a potential outcome considered unconstitutional by critics.

The ANC also agreed to drop Section 49, which makes it an offense to receive, possess or expose information classified by the Department of State Security. Also reportedly removed is a provision to give municipalities the power to classify information.

The deletions came as the National Council of Provinces’ ad hoc committee resumed its deliberations and were welcomed by the bill’s critics, although other provisions are still considered problematical by critics. (See recent article.)

Before the session, the first since Aug. 7, the political parties engaged several weeks of informal talks about the bill. Sept. 30 is the deadline for the committee to report a bill. Text of the changes has not been issued and Chairperson Raseriti Tau said the private talks will continue this week.

The Right2Know coalition opposing the bill noted that it “has called many times for MPs to push back against the securocrats who introduced the Secrecy Bill to bolster their own powers, and today’s deliberations suggest that this may be happening at last.”

The coalition said that “about 50 activists gathered in the corridors of Parliament in a silent circle of meditation, and religious leaders among them offered a prayer that the drafters of the Secrecy Bill heed the voices of ordinary people and address their concerns.”

Reports on the development appeared in The Mail & Guardian and News24.

An analysis of the changes by Sipho Hlongwane was published Aug. 30 in the Daily Maverick.

The report on the meeting by the Parliamentary Monitoring Group is here. The PMG summary of the meeting states:

At the start of the meeting, Members expressed their concerns that the Right2Know campaign had held a prayer meeting outside the meeting venue, but within Parliamentary precincts, as well as concerns that they had entered the venue with lit candles. The Chairperson appealed to them not to hold this type of gathering again, emphasizing that there was no problem with the beliefs, but with how they were being exercised, and calling for respect of everyone’s beliefs as well as the rules of Parliament.

The Chief Whip of the NCOP had called all the parties to meetings, and on many issues there was now consensus. The ANC representative read out the ANC’s proposals. In relation to the offences, the ANC proposed that the phrase “ought reasonably to have known” should be deleted, except in relation to espionage offences set out in clause 36. This phrase would be further clarified by inserting a definition for it. The ANC proposed that clause 1(4) be amended by the deletion of the phrase “and despite section 5 of the Promotion of Access to Information Act”, which it believed would address the concerns about possible conflicts between the two pieces of legislation. The ANC felt that municipalities should be excluded from the Bill. Clause 3(2) should be reworded to specifically make the Bill apply to Cabinet, as well as the security services of the Republic and the oversight bodies referred to in Chapter 11 of the Constitution”, but additional wording “excluding all municipalities and all municipal entities” would be added to clause 3(2)(b). A list of criteria for the “good cause” mentioned in clause 3 would be provided. In answer to concerns around the lack of a public interest defence, the ANC, with the agreement also of other parties, suggested that the heading of clause 43 be changed to “Disclosure and possession of classified information”. The introductory wording of that clause should be amended to read ”Any person who unlawfully and intentionally discloses classified state information, in contravention of this Act, is guilty of an offence and liable to a fine or imprisonment, except where such disclosure or possession is …”. Subclause (a) would remain the same, but the following wording would be: “or (b) is authorised by an internal mechanism as may be provided for, by the Minister, in regulations, or (c) reveals criminal activity, including activity for ulterior purposes listed in sections 14 and 47 of this Act”. It was suggested that clause 49, relating to the prohibition of disclosure of a state security matter, should be deleted altogether. The ANC did not agreed with the DA that all references to valuable information be deleted from the Bill. The Preamble must also be amplified to emphasise that the “right of access to information is the lifeblood, cornerstone, pillar or foundation of our democracy”, and the phrase “for reasons of national security” in the third paragraph would be changed to “by reason of national security”.

Other parties noted that there had been constructive engagement but that there remained some matters to be debated. The COPE representative questioned why no mention was made of the fact that minimum sentences should be deleted altogether. A DA representative said that further discussion and the response of the ANC was needed on the opt-in clause, the classification authority for South African Police Service and some other matters. The ID asked to get the ANC’s written document, and IFP indicated its agreement with the ANC proposals. Members were happy to continue to negotiate and debate outside of the meeting, as well as debate issues in full Committee, and it was agreed that the ANC would provide its document to the other parties, as well as to the State Law Advisors. The State Law Advisors were asked to start drafting a new working document, incorporating those issues already agreed, and flagging those where there were more than one proposal, as the basis for continued deliberations.

In May, a series of earlier amendments were made, including to section 49, but were criticized as insufficient. (See previous report.)

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