Latest secrecy Bill draft still clashes with Paia

The difficulty lies in clause 1(4) of the Bill, which seeks to assert its supremacy over any other law that pertains to classified information.

Critics have long warned that this clause renders the Bill unconstitutional because it explicitly seeks to have the new measure trump the Promotion of Access to Information Act (Paia), which was passed in 2000.

Constitutionality aside, the clause had potentially calamitous implications a year or so ago when the so-called secrecy Bill still sought to enable, literally, 1 001 organs of state, ranging from ministries to museums to parks boards, to classify information

Since then, lawmakers have agreed to restrict the right to classify to the intelligence and defence structures, as well as the top echelons of the police.

This removed the spectre of the new Bill shutting down the avenue Paia created more than a decade ago for citizens to access "any information held by the state" needed to exercise their constitutional rights.

Despite the narrower scope of the Bill, public hearings in March still heard clear warnings from the likes of the South African Human Rights Commission (SAHRC) and veteran human rights lawyer George Bizos that clause 1(4) must go.

The SAHRC said the clause would not only remove the right to access records protected on the basis of national security from the purview of Paia, but would criminalise such access without any allowance for public interest in the information.

This highlights a pointed difference between the two pieces of legislation.

Lack of public interest defence
One of the loudest criticisms of the Bill remains its lack of a public interest defence for those prosecuted for exposing state secrets.

Paia allows for the refusal of documents where their release could prejudice the "defence, security or international relations of the republic".

But it contains a public interest override, which nonetheless obliges the release of the information if the public interest in it clearly outweighs the potential harm.

After two years of debate on clause 1(4), ANC lawmakers reiterated last week that they considered the problem solved by their proposal to remove the phrase "despite section five of the Promotion of Access to Information Act".

Rights groups and the opposition say it is not that simple.

Under the ANC proposal, the clause will now read: "In respect of classified information, this Act prevails if there is a conflict between a provision of this act and a provision of another act of Parliament that regulates access to classified information."

The South African History Archives (Saha) points out that it leaves intact the Bill's intention to trump Paia, although it no longer names the prior Act.

"Removing the reference to Paia in the bill does not resolve the conflict between the two clauses, nor does it mean that Paia will automatically override the Bill," said Saha advocacy and training outreach officer Tammy O' Connor.

"Instead, if the Bill is enacted in the proposed new format, there will be two pieces of legislation that both claim to prevail over the other in the event of conflict."

'Water it down'
The Open Democracy Advice Centre (Odac) argues for the deletion of clause 1(4), a step the ANC is resisting in ongoing closed-door meetings with other parties.

The Democratic Alliance is proposing, in the alternative, that the clause remain, but have added to it the words: "except in the case of the application of Paia".

However, Odac director Alison Tilley said it was not the task of this Bill to pronounce on the status of Paia.

"That is not where we need to go. We need to water down or take out clause 1(4)."

Tilley said this would leave Paia "to sink or swim" in relation to the Bill the ANC hopes to finalise by year's end.

There is no ready answer to how the courts would rule on the conflict between the two pieces of information legislation.

Constitutional law expert Pierre de Vos said, theoretically, Paia enjoys special status as a law written to give effect to the right to information enshrined in the Constitution. But he points out that a court has yet to pronounce on whether it prevails over subsequent legislation.

O'Connor warns that lawmakers cannot be bound by the acts of an earlier legislature, and "therefore the prominence of Paia cannot be viewed by the court as fixed for all time".

She also makes the point that if Paia took a backseat to the new law, the state could refuse to release information purely on the basis that it was classified.

If lawmakers fail to resolve the issue, it could land directly before the Constitutional Court.

Deputy President Kgalema Motlanthe has suggested he would urge President Jacob Zuma to send it to the court for certification, given the controversy the Bill has generated.

MPs will meet in committee again on Thursday, with serious points of contention likely to remain.

The Right2Know Campaign cautioned against haste on Wednesday and urged the committee to reconsider seven key issues.

These include the Paia anomaly, the lack of a public interest and public domain defences, maximum jail sentences of 25 years, the potential ease with which the right to classify can be accorded to bodies outside the security structures, and the criminalisation of mere possession of classified documents. – Sapa

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