analysisBy Rebecca Davis
Wednesday saw the beginning of the last round of Parliamentary deliberations on the controversial Protection of State Information Bill, from the ad hoc committee which has been considering it for almost exactly a year. After over five hours of occasionally heated discussion, some concessions were won – but other aspects of the Bill remain troubling.
The Right2Know activists who were gathered outside Parliament on Wednesday before the ad hoc committee met to finalise the Secrecy Bill made it clear that an awful lot was at stake. SA National Editors’ Forum (SANEF) Deputy Chair Nic Dawes stressed to the small group that there was “still a long way to go”, but that “eventually they will have to listen. Illegitimate power cannot stand.” Strides had been made in two years of advocacy on the issue, he said, but “we have all the reason in the world to keep pushing strongly”.
Methodist pastor Alan Storey said the Bill would never have been considered in 1994 when the Constitution was being written, which he attributed to the fact that people still had fresh memories of oppression. Today, he said, people have amnesia. Storey called on MPs to vote on the matter according to their conscience and not their jobs. If they did so, he suggested, they would be “the new Struggle heroes”. If they voted with an eye on their careers, Storey warned, “history will not deal kindly with you”. He said that the Right2Know campaign would not hesitate to take the Bill to the Constitutional Court should it be required.
The achievements of the Right2Know campaign thus far were touched on by national coordinator Mark Weinberg, who pointed out that since the Bill was first tabled, deadlines had been shifted back and back under pressure. “But we made a technical mistake,” Weinberg said. “We stopped talking about stopping the Secrecy Bill altogether because we started welcoming concessions.” He said that if they were not vigilant, the bill would still become law.
Weinberg acknowledged that the government had a right to keep some secrets. “We live 20 kilometres from a nuclear power station,” he said, referring to Koeberg. “I want the pincode to the door to the nuclear power station kept a secret.” If civil society worked together with government, he insisted, a just law could be created.
Delving into the realm of the sinister – as is almost unavoidable in discussion of the Bill – he asked whether the tabling of the Bill formed part of a broader plan. “Two years ago it was unthinkable that government would be shooting people in the street,” Weinberg said. “This Bill may not be the agenda of one minister, but perhaps forward-thinking members are preparing the framework for further repression.” Win or lose Wednesday’s round in Parliament, he concluded, the Right2Know campaign would be ready for the next fight.
Within Parliament, it was always likely to be a gruelling session for the National Council of Provinces’ ad hoc committee, whose responsibility it is to prepare the Bill for the National Assembly. This would be the last opportunity for opposition parties to table objections and propose amendments, with the deadline for the Bill to be passed to the National Council of Provinces being the end of the month. Opponents of the Bill have been pushing from the outset for the introduction of a public domain defence to protect whistle-blowers, but there have been serious concerns raised about other aspects of the Bill’s most recent incarnations.
In particular, alarm bells sounded over State Security Minister Siyabonga Cwele’s insistence on pushing through clause 1(4), which allowed POSIB to trump PAIA (the Promotion of Access to Information Act). Media Monitoring Africa Director William Bird said on Wednesday that this override function of POSIB was “illogical and unconstitutional”. Another particularly controversial measure was Cwele’s eagerness to introduce a maximum five-year jail term as penalty for the disclosure of classified information. In short, for the opposition politicians on the ad hoc committee, there was a lot to play for on Wednesday.
Although some theatrics were expected at the hearing, what was noticeable from the outset was a distinct lack of urgency among the politicians on both sides of the house. As R2K’s Alison Tilley said afterwards, the sense was not that of a Bill that they were under time pressure to push through. It was natural that opposition politicians would put in some world-class filibustering – Cope’s Dennis Bloem, in particular, would be a gold medal contender at the Filibuster Olympics – in the hope of delaying the passage of the Bill before the end of the parliamentary year. But even among the ANC members, there was no appearance that they were under the whip to get it through.
At times proceedings moved with agonising slowness – after 32 minutes of deliberation, little more than the long title of the bill had been agreed to, and committee chairman Raseriti Tau (of the ANC) showed some impatience. DA MP Alf Lees and aforementioned filibuster champion Bloem were the major players for the opposition, with ANC MP Teboho Chaane leading motions for the ruling party. After some quibbling over linguistic details (the DA wanted all descriptions of information as “valuable” removed), the first major sticking-point to be hit was clause 1(4) – the ability of the Bill to trump the public’s right to access information.
The DA’s Alf Lees urged the ANC “not to take the advice of the Minister” [Cwele] on this matter. Cope’s Bloem suggested the clause was unconstitutional because it violated Section 32 of the Constitution. The ANC’s Chaane said that ANC members would negotiate on the clause if the opposition members were willing to accept a re-wording of the previous clause, 1(3), which states that when there is an apparent conflict between POSIB and other information-related laws, courts must give preference to an interpretation that avoids a conflict. To this clause the ANC wished to add the words “taken into consideration the need to protect and classify state information in terms of this Act” – vague, certainly, but seemingly a better deal than clause 1(4).
Eventually a deal was struck: 1(4) would go, and 1(3) would be reworded.
This was a good outcome for the opposition: R2K’s Tilley described it later as “a helpful amendment”.
The next clause to be substantively amended was 5(3), which previously stated that access to classified information would be restricted to “certain individuals who carry a commensurate security clearance”. Here the ANC threw the opposition and civil society a major bone by proposing including “institutions referred to in section 181 of the Constitution”.
In other words, the Public Protector, the Auditor General, the Human Rights Commission and other chapter nine institutions would be permitted to possess classified information.
The reason for this amendment, the ANC’s Chaane said, was that “the Bill should not hamper the smooth operating of institutions that support democracy”. The change follows the testimony of Public Protector Thuli Madonsela, who said in March that she could not envisage being able to do her job efficiently if the bill was enacted in its original form.
“Will we be affected? Yes, severely,” she told the committee. “We will not be able to function optimally.”
A similar concession was made by the ANC in clause 7(1), which deals with the establishment of policies for classifying and declassifying information. Here they proposed explicitly writing in the need to create conditions for the protection of information accessed by chapter 9 institutions. Another positive change was suggested for clause 7(3), which used to read “Policies and directives must not be inconsistent with the national information security standards prescribed in terms of section 54(4)”, and will now have the words “and the Constitution” added to the end to guard against unconstitutionality. Opposition members welcomed these changes.
The Mail & Guardian’s amaBhungane team had tweeted during proceedings that there was a rumour that the ANC was to introduce its own public interest defence clause to the Bill. This proved not to be the case – but the ANC did propose amendments which marginally widened the protection of individuals seeking to reveal classified information.
Clause 43 – Cwele’s favourite, since it provides for the jailing of whistleblowers – has had a number of laws added to it which provide justification for revealing information.
The amended clause means that people revealing information will escape prosecution if they are protected or authorised by the Protected Disclosures Act, the Prevention and Combating of Corrupt Activities Act, Companies Act, the Labour Relations Act, or the National Environmental Management Act. They will also not be prosecuted if they are blowing the whistle on any criminal activity, including the fraudulent classification of state information as confidential in order to conceal lawbreaking. Chaane called this proposal “the final attempt to accommodate” a public interest defence.
That sounds better, though, right? Well, the DA’s Lees said the amendments were good, but they needed to be expanded to cover some scenarios normally found in standard public interest defence clauses.
For instance: if there is imminent danger to a person, people or the environment, this normally constitutes a sufficient justification for a public interest disclosure.
Chaane said the “imminent danger” scenario was already covered by clause 19 (3), which holds that information must be declassified if there is evidence of “an imminent and serious public safety or environmental risk”. But this wasn’t good enough, Lees said. He pointed out that clause 19 still offered no protection to an individual seeking to reveal the information for the greater good. Clause 43 dealt with protection of individuals, and clause 19 dealt with declassification. The two would need to be explicitly linked, he said.
The ANC wouldn’t budge, however. If that scenario were to occur, Chaane said (where you would get wind of classified information about a serious risk to health or environment), you would simply launch an urgent application to get it declassified. The amendments to clause 43 were as far as the party was willing to go when it came to a public interest defence.
To R2K, that’s simply not good enough. “Say I have a document and I leak it under the terms of the Prevention and Combating of Corrupt Activities Act,” Tilley told the Daily Maverick. “Then I’m protected, sorted. Now say you’re in possession of the document, and you write the article, and it doesn’t prove criminal activity or an environmental hazard. You would not be protected. And people who read it, and were thus in possession of the information too, would also not be protected. Even for people who read it online from New York, the criminal liability would follow them everywhere.”
Another aspect of the Bill that continues to worry Tilley is that it appears that station-level police officers would be entitled to classify information, as the Bill gives authority to “members of the Security Services as contemplated in chapter 11 of the Constitution” to do so.
“Marikana. What more do I need to say?” said Tilley. “Not a good idea.”
But as things stand, this is officially as good as it gets. The ANC said no more changes would be made to the Bill: “These are our final amendments,” Chaane confirmed. After more than five hours of deliberating, however, it appeared that nobody had the appetite to agree on a final report. As a result, the committee will have to meet again on Tuesday to adopt their final report. Next Thursday, assuming no further delays, the Bill should be debated in the National Council of Provinces.
But this means that there will be no time to push it through to the National Assembly this year, since the body meets for its last time this Thursday.
Tilley is convinced that if the ANC had really wanted to push it through, they could have. This begs the question of why, exactly, they considered the bill on Wednesday with so little urgency and relative thoroughness. “Was it a genuine attempt at rapprochement? Was it an attempt to put up a good show? It’s all speculation. But it’s politically interesting,” Tilley said.
There seems little doubt that the concessions made by the ANC on this occasion were designed largely to placate its ally Cosatu, which has opposed the Bill. The party’s lack of haste in moving the Bill through may suggest, also, that coming into Mangaung, it is considered risky to be associated with the provocative legislation.
The Bill is highly likely to pass easily through the National Council of Provinces and the National Assembly. The next step for R2K will be a legal analysis of the Bill’s final draft in preparation for what might be a protracted battle via the Constitutional Court. But they’re certainly not about to let this one go.