The general secretary of trade-union federation Cosatu, Zwelinzima Vavi, told the public hearings on the Protection of State Information Bill in Parliament on Thursday that the federation remained critical of the “chronic problems” of bias, lack of balanced reporting and diversity in the mainstream commercial media.
But state censorship and the potential persecution of journalists and the media would only exacerbate the problems of inaccuracy and bias, he warned.
“We have bemoaned the concentration of ownership in the media in our country, which means there are inadequate levels of diversity and plurality that is so essential to media freedom,” Vavi said in his hard-hitting oral presentation. “However, in our view, in the absence of other viable alternatives, it remains one of the broadest forms of disseminating and implementing rights of access to information for the masses.”
Dressed in a colourful green shirt, Vavi did not try to woo the assembled media during his address. Yet he won acclaim for pointing out that public awareness was integral to holding state institutions accountable and acted as a check against irregularities.
In Cosatu’s view, it was necessary to facilitate and enhance reporting and investigative journalism in the public interest. “However, as the Bill currently placed extensive restrictions on access, possession and disclosure of classified information, it would necessarily severely curtail this objective,” he said.
A public interest defence was necessary in the Bill, especially to support whistle-blowers and the media. “We do not believe that there would be much scope for abuse, because the defence would not be available should a person not be able to demonstrate that there would be a public interest to protect or promote.”
In fact, failure to prove a valid public interest defence would invariably result in the imposition of a criminal sanction, he said.
‘Problematic’
Vavi said the Bill in its current form criminalised the possession of classified information by an unauthorised person under clauses 15 and 44. In terms of clause 14, it also stated that any person who conspired with, aided, abetted, induced, or even counselled another person to commit any offence was guilty of an offence.
“Quite problematically, this section makes no distinction between wilful criminal intent, where someone aids and abets a crime on the one hand, and those on the other who may be providing necessary support for blowing the whistle on corruption.
“This would have the consequences of criminalising the obligations that trade unions officials and advice offices have to assist whistle-blowers with advice, or even blow the whistle on their behalf where a person wishes to remain anonymous. With the increasing risks associated with blowing the whistle, this support may be the only way to incentivise the exposure of corruption or other irregular activities.”
The Bill would have a “dampening effect” on encouraging the exposure of corruption, Vavi said. Criminal penalties would be applicable in some cases, regardless of the seriousness of the irregularity that was exposed by an unauthorised disclosure. “The reality is that, often, whistle-blowers are driven to illegally obtain information only because it would expose an irregularity or corruption, despite that person ordinarily not displaying similar criminal tendencies,” he said.
A common problem faced by trade unions and advice offices related to whistle-blowers sending information on irregularities anonymously to their offices, he said. “In such cases, these organisations would have no authority to possess the classified information. This poses the serious dilemma [of] whether, in order to avoid prosecution in accordance with security legislation, an organisation may be forced to ignore even grand-scale corruption or irregularities.”
The Bill allowed for the absolute exclusion of any whistle-blower protection for the disclosure of information classified as a state security matter by intelligence and security agencies under Clause 49, he warned.
This was illustrated by the fact that a disclosure of ordinary classified information in violation of clause 43 carried a maximum penalty of five years’ imprisonment, whereas under clause 49 the penalty for disclosure varied between 10 and 15 years.
Clear warning
Whistleblowers and journalists facing the imminent threat of detention for the possession or publication of classified information can take heart from the clear warning to Parliament from distinguished human rights advocate George Bizos.
“If the current Bill proceeds unchanged, section 80 of the Constitution empowers the members of the National Assembly to apply to the Constitutional Court for an order declaring that all or part of an act of Parliament is unconstitutional. We [the Legal Resources Centre] would strongly encourage the National Assembly to make such an application,” he said in his representation at the public hearings on the Bill in Parliament on Thursday.
Bizos was representing the Legal Resources Centre, but his words carry weight because of his heroic past, which is steeped in the campaign against apartheid.
The government has a fundamental duty to protect the safety and security of its people, he said.
“The Bill is aimed at promoting that duty, which we perfectly understand. However, we believe that the proposed Bill, if passed as it currently stands, will operate to return South Africa to the secrecy and securitisation that pervaded our dark history, rather than moving us forward with a democracy built on openness, transparency, accountability and the rule of law.”
Bizos said that when the Legal Resources Centre was considering whether to make submissions on the Bill, it was careful to confine itself to identifying the probable unconstitutionality of specific provisions of the Bill.
In doing so, he wanted to guard against “joining the chorus of those involved in sensationalising the issues”.
Bizos said the Legal Resources Centre, like the government of South Africa, was committed to protecting the legitimate classified state information.
“In doing so, however, we believe that the values enshrined in the Constitution should not be undermined, but must be respected and protected.”
As a human rights organisation, the Legal Resources Centre represented the helpless, and more often than not, the hopeless.
The “bone of contention” with the Bill rested on seven key points, he said:
- the Bill does not include a public interest defence
- the Bill adopts a standard of “ought reasonably to have known”
- the Bill allows for an improper delegation of powers
- the Bill does not include an improper classification defence
- the Bill adopts disaproportionately severe penalties
- the Classification Review Panel lacks independence
- The review jurisdiction of the Court must be maintained
By far the main criticism of the Bill has been its exclusion of a public defence clause which, if included, would allow public disclosure of classified information if public interest in such disclosure outweighs the harm to the protected interests, said Bizos.
He pointed out the Constitution protects the right of freedom of expression.
Bizos said failure to protect legitimate disclosure, which unreasonably limits the rights to freedom of expression and which is exacerbated by harsh punishments, was clearly unconstitutional.