Parliament resumes its deliberations on the Protection of Information Bill on Monday with pressure on the ruling party to go beyond concessions promised last month when it came under fire from Cosatu.
During the parliamentary recess, warnings were heard from several quarters that the climb-down did not defuse a fundamental threat to freedom of information and expression.
Among the critics was Nobel literature laureate Nadine Gordimer, who said hard-won concessions “are to be understood for what they are — token moves to silence the rejection of the Bill”.
Echoing Gordimer, academics and activists argue the legislation was conceived to give the state wide powers of secrecy and could not be wrested from its origins by lopping away offending clauses.
The African National Congress last month agreed to restrict the power to classify information to the state security bodies, a dramatic reduction in scope as the Bill had previously sought to allow about 1 000 organs of state — from ministries to public museums — to keep top secret files.
Murray Hunter, the coordinator of the Right2Know campaign, said he would now press lawmakers to restrict the instances where intelligence officials could classify information.
“It is better, but it is not great,” he said, adding the Bill was essentially about expanding the power of government’s security cluster.
As it stood, the state could still draw a veil over any issue by proclaiming it a “security matter”, with severe implications for the rights of not just the media, but all citizens.
The opposition group would rather remaining problems be resolved by MPs, but if this failed it would launch a court challenge, he said.
Wits law professor Iain Currie said the Bill’s chances of passing constitutional muster were about “50-50”, following the concessions, which also included scrapping mandatory jail sentences for possessing and passing on classified information.
‘Emergency surgery’
Unlike the political opposition, he believed that a complete re-draft aimed only at securing defence secrets was needed instead of the “emergency surgery” being done in the legislature.
“It is not necessarily going to result in workable legislation,” Currie said .
“The Bill was designed in a different way and a far better way to redesign it would be to start off with legislation aimed at classifying official state secrets”.
Currie said an agreement by ruling party lawmakers to remove clauses on the protection of valuable information from the Bill was welcome because it did not belong in conventional legislation on state secrets.
But it had created a gap on how to safeguard information in state hands, such as home affairs records, and this should be dealt with in separate legislation or regulations.
Currie and Wits colleagues had argued in a discussion paper that a major remaining sticking point on the Bill — the absence of a public interest defence — could be resolved by introducing a “harm test”.
The ANC has not budged on calls for a defence that would allow whistleblowers and media facing prison for disclosing state secrets to argue that they did so for the public good.
The lecturers proposed that the lawmakers return to a 2008 version of the Bill to borrow a provision that prescribes punishment for disclosure only where it could cause serious harm to the country.
“[It] would allow persons to argue and attempt to demonstrate that they have in fact acted in a manner that protected rather than harmed the security of the state.”
Hunter has welcomed the proposal and there have been indications that the state security ministry may consider it as a way out of the impasse.
Rights groups, the Congress of South African Trade Unions and the opposition hope assurances are cast in writing from next week.
Cosatu’s parliamentary representative Prakashnee Govender said the concessions, widely seen as a response to the ANC ally’s threat of a Constitutional Court challenge, were perhaps “over-reported”.
“The direction was encouraging but we have to see to what extent there is movement on the things that are of concern to us.” – Sapa