If you have been watching the progress of the Protection of State Information Bill you may be suffering from symptoms of whiplash. When the ANC abruptly announced six weeks ago that it was yanking the Bill out of the parliamentary process for further consultation we welcomed its decision.
We had misgivings, both about the subversion of the legislative process and about the possibility that hearings orchestrated by the governing party would be used to lend a façade of legitimacy to a law that is inimical to basic constitutional values of open democracy and free speech.
Nevertheless, the withdrawal provided an opportunity to cure the major remaining defects of the Bill — its lack of any defence for disclosure of classified material in the public interest. We had hoped that the unhappiness within alliance circles over this omission would manifest in meaningful changes. And Deputy President Kgalema Motlanthe hinted strongly this week that a public-interest defence could indeed be included.
But now the Bill is back on the parliamentary schedule, with the stalled second reading debate in the National Assembly set for next Wednesday. No ANC hearings have taken place and no concrete changes have been proposed.
What is going on?
There are two possibilities. One is that the bill will be rammed through in its current form — exactly what Motlanthe said would not happen. This seems unlikely. The other is that the governing party has realised that its hastily planned “consultation” may in fact undermine the legality of the process and has a more defensible plan involving further hearings in the National Council of Provinces (NCOP) and further modifications to the Bill before it goes to President Jacob Zuma for his signature.
It wouldn’t be the first time that running repairs to legislation have been undertaken in the NCOP.
If the ANC opts for the former course the Bill remains vulnerable to constitutional attack on a number of grounds. If it opts for the latter we may just get a decent piece of law out of this long-running battle.
The key test will be the criminalisation of disclosure in the public interest.
We would prefer that the responsibility for keeping secrets rest solely with those officially charged with the job, but there is little chance of that approach being accepted. A public-interest defence would be an acceptable second prize. Let us be clear, such a defence is no carte blanche for the reckless exposure of sensitive security information. It can be a tightly drafted and justiciable framework, based on existing legislation (such as the Protected Disclosures Act) and on common law.
If that approach were to be accepted it would not be a crime to disclose secrets in circumstances where, for example, “a criminal offence or breach of the law has been, is being or is about to be committed; a miscarriage of justice has occurred, is occurring or is likely to occur; a public-safety risk exists; gross incompetence, mismanagement or impropriety on the part of any person has occurred; [where] an undue advantage is being given to anyone in a competitive bidding process; and [where] the public is being misled”.
Pretty basic stuff.
So, while we could be sniping over a confused and confusing process, we are, instead, pleased to see the Bill returning to a transparent public institution. The NCOP, often accused of being a slumbering irrelevance, may soon have a chance to prove its worth.
Read the second half of the editorial “Implement the plans“