The department of state security’s position on a public interest defence clause in the Protection of State Information Bill blatantly disregards the multitude of voices, inside and outside Parliament, that have called for the clause, according to freedom of information activists.
Amendments tabled by ANC MPs serving on an ad hoc committee of the National Council of Provinces on clause 43 of the Bill (dubbed the Secrecy Bill) include an explicit exception for cases where disclosure of classified information reveals criminal activity. The amendments were seen as a flicker of light at the end of the tunnel, a “small step in the right direction”.
But the department, in its presentation to the committee, stated that “the Bill provides checks and balances to ensure there isn’t an abuse of authority to classify information, and provides for lawful means to gain access to the information.
“It does not countenance the principle of being an adjudicator in one’s own cause as implied by the public interest defence.
“The requirement of rule of law and the duty it [im]poses on all citizens, including the media, is the duty to respect classification decisions until they are set aside. Hence, we believe that the Bill provides proper balance between competing interests in the public interest.”
There was also a proposal for a regulatory mechanism to be incorporated in the Bill that would provide a procedure to follow when government employees sought to make disclosures in the public interest.
“The ministry has clearly not listened to the call, as there seems to be a misunderstanding on their part as to what a public defence means,” the director of the Open Democracy Advice Centre, Alison Tilley said. “It’s not a defence for traitors but a way of protecting those who make classified information available in the public interest where needed.”
Tilley said it was surprising that the department had been allowed repeatedly to make input into the parliamentary process. “The fact that they have been given repeated opportunities to respond smacks of executive interference,” she said.
A statement issued by the Right2Know campaign’s Tinashe Njanji said the State Security Agency “stood firm on a clause that would ensure the Secrecy Bill trumps the Promotion of Access to Information Act, which aims to promote peoples’ right to access information”, despite the fact that the Act had failed routinely to ensure that the peoples’ rights were upheld. “It is unacceptable that the Secrecy Bill should be used to further undermine transparency.”
Njanji said the public interest clause was not a “cloak for the malevolent”. “People who use such a defence will still be taking an extraordinary risk when blowing the whistle.”
Accusations of behind-the-scenes manoeuvring by the department have been unrelenting and recently it appeared that the ministry had had a hand in drafting some of the ANC’s submissions on the Bill.
Earlier this month, the Mail & Guardian reported that a search of links to the electronic version of the ANC’s second submission, which came out in April, showed that it was “written by a person called ‘Dlomo'”.
Dennis Dlomo is the special adviser to Minister of State Security Siyabonga Cwele.
In the report, the department’s spokesperson, Brian Dube, said that Bills emanated from the executive and from then moved to Parliament to be processed. If there were requests from parliamentarians for further information and clarity, the department could not ignore them as they assisted “with the procession of the Bill”.
According to the ad-hoc committee chairperson, Raseriti Tau, the committee will meet next week to get a clause-by-clause response from the department.