State Security Minister Siyabonga Cwele would like to see an inclusion of a clause to the Protection of State Information Bill that would see it override the constitutionally-mandated Promotion of Access to Information Act, should there be conflict between the two laws.
Cwele addressed a meeting of the National Council of Provinces committee processing the proposed law on Wednesday, and, while he said his department agreed with the thrust of the amendments the committee has made so far to the Bill, he also has a few proposals.
Chief among the proposals is the re-introduction of the controversial clause 1 (4). Before its deletion by the committee in August, the clause read: "In respect of classified state information and despite section 5 of the Promotion of Access to Information Act, this Act prevails if there is a conflict between a provision of this Act and a provision of the another Act of Parliament that regulates access to classified information."
Cwele said the deletion of the clause would make the classification, reclassification and declassification regime ineffective. He said: "Which law prevails in relation to classified information. It must be clear, this should be the law. The deletion of 1.4 may actually reverse that.
"We are concerned about the actual implementation of the Act. Once you remove that, you will be in endless battles over which Act prevails, that's the first thing the court may have to decide."
On the exclusion of municipalities from classifying information, Cwele said as much as his department agreed with the committee due to perceived problems at local level of government, they have a legal opinion which says that "if we define municipalities outside of the constitutional definition of the organs of state, we stand to also compromise the spirit of the Constitution".
He said legal advisors say that change starts to remove other responsibilities of a municipality as defined in the Constitution. "Even in terms of this Act, we are excluding them in the classification system, but we are not excluding them in handling valuable information."
Cwele also had an issue with the committee's proposal that ordinary members of the South African Police Service and the South African National Defence Force should not classify information.
"We are saying people who get classified document must send it to the police. But we are saying not to ordinary police."
Cwele said it may be tricky to define an ordinary police member.
"May be you should reconsider whether this is necessary because we have already reduced the classification to few departments which deal with national security and we put the condition that things for classification must have an element of national security in them," he said.
Cwele later told journalists that he was not putting any undue influence on Parliament, but merely putting suggestions to them.
The Right2Know campaign has raised its concerns over Cwele’s proposals, stating that Paia is prescribed by the Constitution and must remain the supreme information law.
The campaign labelled Cwele's proposal on the police and soldiers' powers to classify as "outrageous". "One can easily imagine, in the light of the recent massacre at Marikana, that little of the valuable information that has emerged would see the light of day if the minister gets his way on the secrecy Bill," said the campaign in a statement.
In a statement, the Democratic Alliance also said it was worried about Cwele's proposals while Congress of the People's Dennis Bloem outrightly rejected them in Cwele's presence during the meeting.
The committee’s life span has been extended to the end of November.
Committee chairperson Raseriti Tau told the Mail & Guardian that they would do their best to wrap up work on the Bill this year.