Opposition parties accused the ANC on Wednesday of seeking to use clause 18 of the Protection of Information Bill to force journalists to reveal their sources to the authorities.
The clause obliges anybody who comes into possession of a classified document to hand it to the police or the intelligence services to avoid prosecution.
Democratic Alliance MP David Maynier asked African National Congress colleagues on the committee drafting the state secrets Bill: “Could it be explained to me what the purpose is of handing the document to the police?
“Is the danger not that the police could try to determine who had leaked that document to the journalist?”
Luwellyn Landers, who leads the ANC’s arguments on the ad hoc committee drafting the Bill, responded: “There is nothing wrong in that.” He added: “Mr Maynier incidentally reveals his whole approach to the law. He finds leaking to be a virtue.”
Maynier said his position was “a democratic one”, while the ANC’s was not. He added it was unthinkable that journalists who received classified information would rush to a police station to get rid of it.
“It will never happen in a million years, ever. This is madness.”
The issue had cropped up repeatedly in recent deliberations on the Bill, with the ruling party insisting the clause would stay. It had rejected opposition proposals for exemptions from prosecution for possession of state secrets.
According to the latest draft, the only exception is where possession is authorised by another law.
The DA had argued the new law should explicitly rule out prosecution where the information was wrongfully classified or concealed wrongdoing.
‘Orwellian situation’
Dennis Dlomo, the special adviser to State Security Minister Siyabonga Cwele, said on the sidelines of deliberations that since the latest draft did not criminalise possession per se — provided the police were alerted — the recipient could then, without fear, approach the minister with a request to declassify it. In this regard, the clause no longer riskeild creating what constitutional law expert Pierre de Vos called “an Orwellian situation”, where one could not ask authorities to declassify a document, because admitting that one had insight into it could land one in ja.
But African Christian Democratic Party MP Steve Swart said in the absence of a public interest defence to protect journalists and whistleblowers, going to court would in reality be “the only route” for somebody who uncovered classified information that concealed corruption.
Opposition parties argued that an independent appeal authority on declassification must be created, because the cost of going to court was beyond the means of most South Africans.
Work on the Bill got bogged down in acrimonious argument on Wednesday after significant changes to it were agreed earlier this week. On Tuesday, the ANC accepted a narrower rewording of a clause that imposes prison sentences of up to 20 years for disclosure of state secrets.
It was hailed as a breakthrough by opposition MPs and civil rights groups who feared the earlier version could be abused to muzzle the media. They also welcomed a hard-won agreement to narrow the definition of national security as grounds for classifying information, and to limit the power to keep secret files to the intelligence and security services.
But observers had little hope the ruling party would relent on calls for a defence to enable the press and whistleblowers, when prosecuted for exposing classified information, to argue they acted in the public interest.
This was one of the sticking points that prompted the Congress of South African Trade Unions to warn three months ago that it would refer the Bill for constitutional review unless it were amended significantly. – Sapa