The ANC appears to have been swayed by Cosatu leader Zwelinzima Vavi's insistence on changes to the Bill, writes Andisiwe Makinana.
The ANC this week rejected State Security Minister Siyabonga Cwele's controversial proposed changes to the Protection of State Information Bill and instead appeared to have been convinced by trade union federation Cosatu to change it.
On Tuesday, the ANC's study group working on the Bill met with Cosatu general secretary Zwelinzima Vavi in Cape Town to discuss it.
An ANC source, who was part of the meeting, claims that the party "begged" Vavi to endorse the Bill as it was – without a public interest defence clause and with the controversial clause 1(4) in it. This clause would result in the Bill overriding the constitutionally mandated Promotion of Access to Information Act should there be conflict between the two laws.
But Vavi allegedly demanded the inclusion of a public interest defence clause, the removal of clause 1(4) and a further narrowing of the scope of the Bill.
According to the source, Vavi also suggested that the ANC should advise President Jacob Zuma to refer the Bill to the Constitutional Court for vetting before signing it into law.
"They [the ANC study group) were not keen on this," said the source.
The study group was allegedly also not keen on including the public interest defence clause.
"They were begging Vavi to give support to the Bill, saying how much good work they've done on it and citing the changes they've made thus far," said the source.
On Wednesday, during the meeting of the National Council of Provinces' committee processing the Bill, the ANC indeed tabled new amendments, among them dropping clause 1(4).
It also reworded the preceding clause 1(3) to state that in the case of a clash between the new official secrets legislation and any other law, courts must prefer a reasonable interpretation that avoids a conflict "taking into consideration the need to protect and classify certain state information in terms of this Act".
In October, Cwele called for the reinsertion of clause 1(4), saying the deletion of the clause would make the classification, reclassification and declassification regime ineffective.
He said at the time: "Which law prevails in relation to classified information? It must be clear; this should be the law. The deletion of 1.4 may actually reverse that."
The ruling party also proposed to reinsert a clause offering protection for those who reveal classified information to expose a crime. Again, Cwele had wanted no such provision, saying only a court and not a whistle-blower could determine whether something is a crime.
Another proposition was that the public protector, auditor general and other chapter nine institutions should have full access to classified information to further their work.
Responding to the developments, Cwele's spokesperson, Brian Dube, told the Mail & Guardian that Cwele was merely making recommendations for the committee to consider. "So, they've done this ... and that's where it ends," he said.
Power relations issue
The chairperson of the ad-hoc committee, Raseriti Tau, said the changes were "a reflection of an ongoing discussion process which appreciates that we might have moved in a different direction, but after careful considerations we decided to come back and say let's reconsider this thing."
He denied that Cosatu strong-armed the committee, saying it has been meeting with a wide range of people, including the public protector and non-governmental organisations. "It's not a power relations issue between the committee, [ANC] study group and the minister, but rather what becomes in the best interest of the country," said Tau.
Cosatu spokesperson Patrick Craven said the union was cautiously optimistic about the Bill. "The government said they'll go away and redraft it. Until we see the draft I can't comment further." Craven added that he could not comment on the precise details of Tuesday's meeting.
Cosatu's parliamentary officer, Prakashnee Govender, confirmed that the meeting took place as well as the list of Cosatu's demands at the meeting.
Vavi took to Twitter on Tuesday night, tweeting: "We made some real progress with ANC committee dealing with protection of state info Bill. Hope we can settle this without further stress."
The committee will vote on the Bill on November 27 and it will be debated in the National Council of Provinces on November 29 before being referred back to the National Assembly for adoption.