Those who continue to argue against the Protection of Information Bill believe South Africa has no legitimate national security to protect, State Security Minister Siyabonga Cwele said on Friday.
In a presentation to the special parliamentary committee dealing with the Bill, Cwele said the approach adopted by the government towards the Bill was underwritten by the International Covenant for Human Rights and the European Covenant on Human Rights.
It was also in line with the African Charter on Human and People’s Rights.
“These have produced a substantive international jurisprudence on national security matters and access to information,” he said.
The right to freedom of expression was enshrined in a range of international and regional treaties and instruments binding member states, including South Africa.
Each of these also provided for the limitation of this right on the basis of national security. International best practice on how this right might be limited took the form of a three-part test as the norm.
Firstly, the limitation had to be prescribed by law and such law had to be clear and precise.
Secondly, it had to be genuinely directed towards achieving one of the legitimate aims of the treaties providing the basis for the limitation, namely national security, or public order or public health or morals.
If the ground was the protection of national security, then the limitation had to advance or contribute towards national security.
Thirdly, the limitation had to be justifiable and necessary in a democratic society.
“Although we remain convinced that the original version of the Bill conformed to this three-part test, we have since reviewed it and recommended that certain provisions be deleted to better conform to this test,” Cwele said. These included the total removal from the Bill of “national interest” and “commercial information” to ensure clarity, precision, and sticking to legitimate aims.
Prerequisites for classification
In addition, prerequisites for classification had been added to ensure any legitimate grounds for limitation of the right to access to information were not abused for hiding wrongdoing, corruption, maladministration, inefficiency and incompetence in the public service.
In view of these, among other things, those who continued to argue against the Bill were basically of the view that South Africa had no legitimate national security to protect.
“Clearly, this is far from the truth,” Cwele said.
The information the government sought to protect included legitimate national intelligence structures sources; legitimate operational methods, doctrine, facilities and personnel of security structures; sensitive confidences in international relations; and ongoing investigations of state security structures.
Also, details of criminal investigations and legitimate police and law enforcement methods; and economic, scientific or technological secrets vital to the country’s stability, security, integrity, and development.
“We also seek in national security to negate hostile acts of foreign intervention, terrorist and related activities, information peddling, espionage, and unlawful acts against the constitutional order,” he said.
All of these reflected not just South Africa’s concerns, but that of other developed and developing countries.
“We are legislating for real problems and are not seeking to cover up corruption,” Cwele said.
Importantly, the public-interest override in the Promotion of Access to Information Act, which was acknowledged in the Bill, enabled those who wanted to expose documents classified to hide corruption or an impending public health problem to do so using legitimate channels, he said.
‘I don’t know if there are such fools that are alive today’
Meanwhile, Parliament’s special ad hoc committee will not approve the Bill if it is clearly unconstitutional, committee chairperson Cecil Burgess said on Friday.
“There can be no Parliament in this world, certainly in South Africa, that is going to be that brave to pass a Bill that it knows itself is clearly unconstitutional,” he said at the start of Cwele’s presentation.
“I don’t know if there are such fools that are alive today. I’ve not met any of them in Parliament.
“So, if there are any concerns out there that this committee is going to deal with the Bill in such a manner that when it is finished, it is clearly unconstitutional, or that it is violating constitutional rights, I think that would be a very incorrect impression of the way Parliament works,” Burgess said.
The committee had not yet started interacting on the Bill on a clause-by-clause basis.
“We have been collecting information, we have been listening to the public, and contrary to what the public or some people might think, we have been listening, and all the information and concerns raised will be taken into consideration, and it will be debated when we deal with the clause-by-clause process. We have not yet reached that [stage].”
The committee would then decide whether any clause or particular definition should be changed or deleted.
“But, let it not be said that Parliament has already processed this Bill and that this Bill is going to survive or not survive in the shape that it presently is. That we will only know when the process is finished.”
It also seemed there was some confusion as to Cwele’s role.
The minister did not have the power to amend the Bill. Only Parliament had the power to do so.
Cwele had simply been given the opportunity to comment on concerns raised during public hearings on the bill. His comments in the first presentation a few weeks ago, and those made on Friday, were matters the committee “may or may not take into consideration”.
“They are only suggestions and the committee does not have to take it into consideration,” Burgess said. — Sapa