31 August 2011

South Africa: ANC Rejects Public Interest Defence

Parliament — As deliberations on the Protection of Information Bill near an end, the ANC on Wednesday stood firm in its refusal to write a defence into the legislation for people who disclose classified information for the public good.

ANC MP Luwellyn Landers said calls for a so-called public interest defence were a veiled attempt by the opposition to create a loophole which would spare journalists from being sent to prison under the new law for exposing state secrets.

"Let's be honest, essentially what the opposition is saying is that journalists who come into possession of classified information should be allowed to publish it."

The SA National Editors' Forum has rejected Landers' contention and said it would apply not only to journalists, but to any citizen making such information available in the public interest and in particular, to whistleblowers.

"Good work has been done by activists and by MPs to improve this draft legislation, but without a public interest defence it will be an anti-democratic and unconstitutional law," Sanef chairman Mondli Makhanya, said in a statement.

"A public interest defence is not carte blanche to publish, it is carefully limited to exposing corruption, gross mismanagement and violations of the law and human rights."

Sanef, academics, activists and the opposition have argued that the clause would offer protection not only to the press but vitally to whistleblowers and ordinary citizens who expose information that was classified to conceal state corruption.

Expert opinion on whether the absence of a public interest defence would render the new state secrets act unconstitutional is divided, but interest groups are expected to launch a court challenge should it be passed by the National Assembly next without such a clause in place.

Landers said the ANC did not believe that the bill placed an "unjustifiable constraint on media freedom or freedom of expression" by forcing journalists to hand secret files to the police, then request the minister to declassify them if they felt the information belonged in the public domain.

"It merely makes the media subject to the rule of law."

A heated debate ensued, in which fellow ANC members likened a Democratic Alliance proposal to protect publication if the information was classified to conceal wrongdoing, to legalising theft.

DA MP Dene Smuts retorted: "We are talking about stealing. Theft and corruption is a big problem in our country and it is the duty of any democrat to expose it."

She said that a public interest defence did not amount to legalising the exposure of legitimate sate secrets.

"It is just a defence. If they get it wrong they still go to jail."

The law imposes prison sentences of up 20 years for disclosing state secrets.

Opposition parties were not surprised by the ANC's decision, but said they nonetheless found it disappointing.

The Inkatha Freedom Party's Mario Oriani-Ambrosini urged the ANC to rethink its position and to trust the country's judges to decide whether it applied.

"A judge is competent to weigh whether the public interest is better served through disclosure or through secrecy." The chairman of the committee drafting the bill, Cecil Burgess, deemed the opposition argument "lop-sided" and said he believed that debate on the subject was exhausted.

This signals that the ruling party will use its majority muscle to outvote the opposition on the matter when it finalises the bill this week.

It is expected to go to the National Assembly before September 15.

Civil society groups and the Congress of SA Trade Unions (Cosatu) have rejected the ANC's contention that, as the bill stands, it offers sufficient protection for whistleblowers who expose wrongdoing covered up by classification.

The committee is expected to return to the matter of whistleblowers in the remaining two days of deliberations.

The director of the Open Democracy Advice Centre (ODAC), Alison Tilley, held out some hope for increased safeguards in this regard.

"I'm hopeful that there can still be a turnaround on this subject."

Her organisation has distributed a legal opinion from advocate Steve Kahanovitz.

He argued that the limited protection offered to whistleblowers who work for the state fell short of constitutional imperatives because of the heavy onus it placed on the accused.

The ANC said on Wednesday it had not yet studied his opinion.

The party is understood to have met with Cosatu representatives earlier in the day, but to have reached no understanding on the whistleblower controversy.

Rights groups have welcomed concessions by the ANC in recent weeks that have restricted the scope of the bill, which in its original draft was deemed a draconian onslaught on constitutional rights, including freedom of expression.

There was one further concession on Wednesday. The ANC agreed to a proposal by Oriani Ambrosini to rewrite a contentious clause that would have prohibited the publication of any "state security matter".

The redraft prohibits the publication of only classified information relating to the work of state security agents, but increases the maximum penalty for this crime to 10 years in prison.

"It has been turned into a 'don't mess with the agency clause', but at least the scope of what can be classified has not been widened," said Oriani Ambrosini.

ODAC has welcomed the change.

Smuts said: "It removes a certain grounds for unconstitutionality."

This report has been updated since first published.

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