21 November 2012

South Africa: ANC Tables New Info Bill Changes

The ANC proposed changes to the contentious Protection of State Information Bill again on Wednesday, this time tending to the liberal, and said there would be no more.

The ruling party went against the wishes of State Security Minister Siyabonga Cwele by proposing to reinsert a clause offering protection for those who reveal classified information to expose a crime.

The move was welcomed by the Democratic Alliance as "indeed very good".

Last month, Cwele argued in a much-criticised appearance before the ad hoc NCOP committee finalising the bill that there should be no such provision, as only a court, and not a whistleblower, could determine whether something is a crime.

African National Congress lawmakers furthermore agreed to remove clause 1 (4) of the bill, which states that the measure will trump the progressive Promotion of Access to Information Act of 2002.

The minister had argued for - and briefly obtained - the retention of the clause, which some critics believe could be unconstitutional.

Instead, the ANC said it would like to reword the preceding clause 1 (3) to state that in case of a clash between the new official secrets legislation and any other law, courts must prefer a reasonable interpretation that avoids a conflict "taking into consideration the need to protect and classify certain state information in terms of this act".

Thirdly, they also made a proposal to give explicit permission to the Public Protector, the Auditor General and all other chapter nine institutions to be in possession of classified information.

The party said this was in response to an impassioned plea by Public Protector Thuli Madonsela in March that, as it stood, the bill could severely hamper the work of her office.

Madonsela said she received secret documents on a routine basis and would risk arrest if the bill became law as is.

Introducing the proposed change to clause 5 (3), MP Teboho Chaane said it had become clear that, apart from the Cabinet, these institutions needed the authority to have access to classified information to function properly.

"We realised that they may face a situation where they may not have access to information and it may disturb the way in which they want to support democracy."

This change too was welcomed by the opposition, although other parties complained when the ANC added the proviso that this authority would have to be limited, for example, to staff from the institutions who had undergone security clearance.

The latest amendments come after the ANC is reliably understood to have met with its formal ally the Congress of SA Trade Unions, which was unhappy in particular with clause 1 (4) and insufficient protection for whistle-blowers.

They mark another moment of zig-zagging by the party on the bill that has met with sustained public opposition in the past two and half years, but Chaane said these were indeed the ANC's final amendments.

"These are our final amendments in these particular proceedings," he told fellow MPs.

Opposition parties agreed to all the new changes, but failed to have the rewritten clause 43 linked to clause 19, which would extend protection to those who reveal secret information where a health or environmental risk outweighs the rationale for classification.

Wednesday's meeting had been billed as the one where the lawmakers would finalise their work, but they failed to adopt a final report and will now meet on Tuesday to do so.

The committee's deadline to report to the National Council of Provinces expires at the end of the month.

Committee chairman Raseriti Tau said the council would vote on it a day earlier, and then refer it back to the National Assembly for approval.

"Definitely, on the 29th of November, this bill will be debated in the NCOP," he told Sapa.

Since the National Assembly has its last session on Thursday, it will only return to the bill in the new year, in keeping with observers' belief that the ruling party is in no hurry to finalise a bill that divides it before its elective conference in Mangaung next month.

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