The African National Congress on Monday made good on a promise to drastically restrict the application of the Protection of Information Bill, and also proposed narrowing the grounds for classifying information.
The ruling party ditched an unpopular proposal to pass the new law without a definition of national security. Instead it tabled a rewritten, simplified definition of the concept, which will serve as the only justification for classifying information under the new state secrets law.
It does away with flowery language and lofty notions ridiculed by legal experts. It gives the meaning of national security as the protection of the people of South Africa and the territorial integrity of the republic against the threat of the use of force, war, terrorism, espionage, violence and sabotage.
This part of the definition was taken almost verbatim from a proposal by prominent media lawyer Dario Milo. His work was in turn based on the Johannesburg Principles, drafted by international law, security and human rights experts in 1995.
However, the ANC also inserted clauses necessitating the protection of the country against “exposure of a state security matter” and “exposure of economic, scientific or technological secrets vital to the republic’s stability, security, integrity and development”.
Concession
The Democratic Alliance regretted the additions, but won a concession from the ANC when it agreed to add a sub-clause proposed by the DA. This states explicitly that national security “does not include lawful political activity, advocacy, protest and dissent”.
African Christian Democratic Party MP Steve Swart said he felt vindicated that after much argument the ruling party had settled on a proposal he made last year, borrowing Milo’s submission.
“That was my initial proposal, broadly speaking,” he said.
Swart said the way in which the inclusion of economic and scientific secrets — something the opposition had strongly opposed — had been drafted meant it would only come into play in very limited circumstances.
The opposition heartily welcomed a proposal by the ANC to limit the application of the Bill to the intelligence and security services and the police. This followed a pledge made in June after plans to allow all organs of state — an estimated 1 001 entities — to classify information drew sustained protest from civil society and its alliance partner the Congress of South African Trade Unions.
Constitutional law expert Pierre de Vos cautiously welcomed both the narrower definition of national security and the limited application of the legislation.
‘Welcome development’
“My first impression is that it is a much more restricted application and on that score it is a welcome development,” he told the South African Press Association.
“Depending on everything else in the act, it is more compliant with the Constitution. It is much closer to what one could be able to live with and what the Constitutional Court might find acceptable. The earlier drafts of the Act were clearly unconstitutional.” De Vos said whether or not the Bill afforded protection to whistleblowers who published information that was wrongly classified would also determine whether ultimately it passed constitutional muster.
The ANC was still ruling out a so-called public interest defence that would allow people who revealed state secrets to argue in court that they had done so for the greater good.
Drafting of the Bill was expected to wrap up within weeks, after more than a year of wrangling and more public opposition than any other legislation had attracted since the fall of apartheid.
Opposition parties were increasingly confident the outcome would be a workable compromise. They however remained concerned about clauses that could send somebody to jail for 20 years for obtaining or communicating state secrets in the reasonable knowledge this could further hostile activity.
At issue was the addition of the phrase “or prejudice the state”, which opposition lawmakers said was too wide and open to abuse to muzzle the media.
“This is the clause that is going to be used to lock up journalists,” DA MP Dene Smuts said.
Deliberations would continue throughout the week.
Cecil Burgess, chairperson of the committee drafting the Bill, urged the deadline for finalising the Bill be brought forward by a week to September 15. – Sapa