South African Panel OKs Protection of Information Bill

30 November 2012

A committee of  South Africa’s lower chamber of Parliament Nov. 29 approved the committee report on the controversial protection of state information bill by a vote of 34-16.

The action by the ad hoc committee of the National Council of Provinces came despite protests from opposition member and by protesters in the streets. The amended bill will go back to the National Assembly in the new year, where passage is assured by the African National Congress (ANC) majority.

State Security Minister Siyabonga Cwele defended the law in an address, saying it is “in fact, more progressive than any other act anywhere else in the world that governs the protection of classified information.”

Opposition parties say they will ask the Constitutional Court to overturn the law.

Opposing the bill in the committee meeting, Democratic Alliance member Alf Lees said, “Given the levels of corruption we see in government today it is inevitable that the bill will be used to cover up crime and corruption by those who risk exposure,” according to a report by the South Africa Press Association.

Critics say the bill still would impose excessive prison sentences and lacks a proper public interest defense clause to protect the media and whistleblowers.

“The problem with the public defence clause is the associated risk where any member of the public can decide what is in the public interest, when the head of [an] organ [of state] or courts for instance may be in a better position to objectively weigh up the issues,” Cwele said. He said the bill would withstand a constitutional challenge.

The bill was introduced in 2010 and triggered a sustained public outcry. Last-minute amendments included a clause offering protection against prosecution for those who reveal classified information to expose a crime. Also eliminated was a provision that would have made the new legislation trump the Promotion of Access to Information Act.  

See the committee report and a summary of the meeting by Parliamentary Monitoring Group.

The Right2Know campaign, a civil society coalition, gave members of parliament a “briefing” note MPs as they entered the NCOP chamber, aiming to counter an anonymous pro-bill document given to members entitled “The 10 myths about the Protection of State Information Bill.” Earlier in the week, the opposition parties walked out of a committee meeting to protest rushed procedures.

The campaign said that the bill still fails the “Right2Know seven-point freedom test.”  The campaign said:

The Bill still carries the fingerprints of the securocrats who have remained the ‘hidden hand’ behind this process from the start. The finalised version criminalises the public for possessing information that has already been leaked, protects apartheid-era secrets, and still contains broad definitions of national security that will in all likelihood be used to suppress legitimate disclosures in the public interest.

The seven-point test document indicates that some of the campaign’s demands have been met or partially met, but identifies one major problem area with a red frowny face; concerning penalties for unauthorized disclosure to society at large. The entry states:

The Bill still makes simple possession and simple disclosure by any person a crime, meaning the state’s obligation to protect its classified information is transferred to society as a whole. Once the horse has bolted, any person can be locked up for taking the information into their possession or proliferating it (i.e. doing no more than the entire world did with the Wikileaks cables).

This is so blunt an intrusion on the rights of access to information and freedom of expression that it will fail the constitutionality test. We do not want South Africa to become a society where ordinary people are afraid to exchange information at the apprehension they might fall foul of secrecy provisions – which is exactly what will happen after a few such prosecutions.

The problem is compounded by the complete absence of a public domain defence: it will not help a person charged with unlawful possession or disclosure of classified information to point out that the information was already widely available.

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