South African Minister Opposes Secrecy Bill Changes

2 November 2012

South African State Security Minister Siyabonga Cwele Oct. 31 opposed several amendments made to the Protection of State Information Bill that critics have said were improvements to a still flawed bill.

He called for the parliamentary committee working on the bill to reinstate a five-year prison sentence for those who disclose classified information. Cwele also urged the ad hoc committee of the National Council of Provinces to drop protections for those who publish classified documents in order to expose a crime, according to reporting by the South African Press Association.

The committee’s deadline has again been extended, to Nov. 30. For Cwele’s presentation, text of the bill, and audio of the meeting, visit the Parliamentary Monitoring Group website.

Cwele also asked the committee to scrap a clause intended to head off conflict with the Promotion of Access to Information Act. “Cwele said PAIA, which allows for the disclosure of state secrets where public interest outweighs security concerns, could not be the final word on classified information,” SAPA reported.

The minister also asked MPs to reconsider raising the threshold of proof for criminal conviction under the new legislation.

Cwele “questioned lawmakers’ decision to restrict the power to classify to senior levels in the security forces, saying both the police and the army had objected to this,” SAPA said.

The SAPA report noted that the deliberations over the bill have divided the ruling African National Congress.

Democratic Alliance MP Alf Lees was quoted as saying, “The proposals presented by the Minister, if agreed to by the ANC MPs, would in effect destroy all the hard work the Committee has done to ensure that this Bill protects freedom of the press and access to information.”

An Alliance statement begins:

The push-back yesterday by Minister of State Security, Siyabonga Cwele, is a serious blow to the hard work the Ad Hoc Committee on the Protection of State Information Bill has put into bringing the Bill in line with the Constitution.

Coalition Objections Continue

The Right2K Campaign criticized the Cwele proposals and continues to fault the amended bill. The objections are:

•             The Bill will criminalise the population at large rather than hold only those responsible for keeping secrets accountable.

•             There is still only a limited Public Interest Defense that is out of step with the Promotion of Access to Information Act (PAIA) and only covers matters such as criminal misclassification of information.

•             The risk remains that a whistleblower, journalist or activist who discloses a classified record with the purpose of revealing corruption or other criminal activity may be prosecuted under the “espionage” and related offences clauses to avoid them invoking the public interest defense.

•             Draconian sentences of up to 25 years in jail remain.

•             The procedure permitting applications for the declassification of classified information is in conflict with PAIA – despite commitments from the NCOP to the contrary.  The Classification Review Panel is not sufficiently independent and the simple possession of classified information appears to be illegal even pending a request for declassification and access.

•             People can be charged with “espionage”, “receiving state information unlawfully” (to benefit a foreign state), and “hostile activity” without proof that the accused intended to benefit a foreign state or hostile group or prejudice the national security; only that the accused knew this would be a “direct or indirect” result.

•             Lastly, information classified under apartheid law and other constitutionally problematic policies will remain classified under the Bill pending a review for which no time limit is set.

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