The ruling party re-inserted a provision for a minimum jail sentence of 15 years for espionage, a crime which would carry a maximum sentence of 25 years. It denied claims it was also reneging on an agreement that, in order to convict somebody of spying, the state should prove that the accused intended to benefit a foreign country.
The Democratic Alliance on Tuesday said the ANC had agreed in a closed-door meeting to remove the phrase "ought reasonably to have known" in relation to this offence, as with all others created by the draft law. The wording has been widely criticised as creating such a low standard of liability that those charged under the new legislation could be jailed for mere negligence.
"They are certainly back-tracking on espionage," DA MP Alf Lees said.
The chairperson of the National Council of Provinces (NCOP) committee processing the Bill, Raseriti Tau, disputed this. "There was an agreement that regarding espionage it will remain like that and we will remove the reverse onus from all other offences."
He said it was justified in the case of espionage to lower the burden of proof, given the gravity of the crime. The latest working document circulated on Tuesday also indicated a change of heart from the ruling party on the bitterly contested clause 43, which criminalises the publication of classified information.
After more than two years of wrangling on that clause, the ANC recently agreed to extend the limited protection offered to whistle-blowers. It did so in part by inserting a sub-clause affording whistle-blowers protection from prosecution if disclosure is authorised by any law.
This was welcomed as a considerable improvement on earlier drafts, which merely allowed for disclosure in terms of the Protected Disclosures Act and section 159 of the Companies Act.
The latest proposal excludes reference to other laws, and replaces it with a sub-clause allowing disclosure if it "is authorised by an internal mechanism as may be provided for by the minister in regulations".
"That is much narrower," commented Alison Tilley from the Open Democracy Advice Centre.
The committee faces a September 30 deadline to complete deliberations on the Bill and report to the NCOP. It has been granted several extensions already, but Tau is adamant that Parliament will sign off on the measure before Christmas.
As debate dragged on into the evening on Tuesday, MPs agreed to set aside the espionage and other problematic causes and return to them later. – Sapa
