/ 21 January 2011

Secrets Bill has ‘not been defanged’

The ANC may have softened its stance on the proposed media appeals tribunal but there are fears that it is clinging to highly controversial provisions in the Protection of Information Bill.

Dubbed the “Secrets Bill” by critics and currently before Parliament, the legislation is designed to create a new system for the classification and protection of state information.

The Bill has been roundly criticised by civil society and legal experts as a threat to democratic transparency and as inconsistent with the Constitution.

There has been an incremental shift in the ANC’s position on the legislation, say some observers, which was initially characterised by its dismissal of concerns that it was being rushed through Parliament for completion by the end of last year.

However, opposition MPs and civil society remain concerned that some of the most problematic provisions have yet to be dealt with by the ad hoc committee on the Protection of Information Bill, the term of which expires next Thursday.

The chairperson of the committee, Cecil Burgess, was at pains this week to emphasise that the Bill is not being rushed through. He conceded that if the committee could not finish dealing with the proposed law its lifespan might have to be extended.

One ANC committee member, who asked not to be named, said the ANC had been grappling with the many criticisms of the Bill raised in public hearings.
“There has been honest discussion on issues including questions of what we want to achieve with this legislation and whether we’ve gone overboard,” said the MP. “There has been movement on the ANC’s side.”

Commercial information
Concessions include the removal of commercial information as potentially classifiable under the Bill, as well as the removal of the vague term “national interest” as a criterion for barring access to information.

Another example has been the bid to align the Bill with the Promotion of Access to Information Act (PAIA), which governs how the public can obtain state information and includes a public-interest override, allowing for access to state information when it is in the public interest.

But MPs and civil society say that the most problematic elements of the Bill remain unaddressed. “The Bill has not been defanged,” said the Democratic Alliance’s David Maynier.

Major concerns include the failure to narrow sufficiently the definition of the term “national security” as grounds for classification, as well as to identify what information may be classified, said Mark Weinberg, the national coordinator of the civil society coalition, the Right2Know campaign.

In addition, the ANC’s proposal to include the concept of information-peddling as a threat to national security is “new to international discourse and too broad,” he noted.

An information-peddler is defined in the Bill as a person who uses “illegal and intrusive” techniques of information-gathering, and who falsifies information with the intention to destabilise the state.

“There has not been a lot of progress and [the Bill] is still a long way from what is acceptable under our constitutional dispensation,” said Weinberg.
In addition, the legislation still does not provide for a public-interest defence in cases of disclosure of classified information.

“The argument is that if we are going the route of PAIA, which includes a public-interest override to gain access, why shouldn’t we have a public-interest defence clause?” asked Steve Swart, a member of the committee representing the African Christian Democratic Party.

The scope of the Bill is still seen as excessively broad, as it applies to all organs of state. This could affect the independence of certain institutions and have administrative and financial implications for government and state-run entities.

The Bill continues to impose criminal sanctions on the legitimate disclosure of state secrets in the public interest, said Weinberg. “The penalties are still applied to society at large and are outrageously high,” he said.

The Bill provides for jail terms of up to five years for unlawful disclosure, regardless of whether it is in the public interest, and if the offence is deemed espionage or hostile activity sentencing can be up to 25 years.

Right2Know said there is also no provision for an independent body appointed by Parliament to be the arbiter of decisions on what to classify as secret.

Instead, the highest level of appeal remains the minister of state security.