27 November 2012

South Africa: Completion of the Processing of the Protection of State Information Bill in the National Council of Provinces (NCOP)

Today, 27 November 2012, marked the last meeting of the Ad hoc Committee on the Protection of State Information Bill.

On behalf of the Committee, I would like to take this opportunity to thank all the people of South Africa, civil society organisations and members of the media who in their various ways made the processing of this Bill enriching and resulting in one of the most elaborate public consultation processes in our Parliament.

Despite the fact that the Protection of State Information Bill (Herein referred to as the "Info Bill") was a Section 75 legislation, the National Council of Provinces (NCOP) took a decision to convene public hearings and meetings in at least two districts in all nine provinces.

The Committee received written and oral submissions of over 1200 pages from various individuals, civil society organisations and political parties.

In a period of almost eleven months, the Committee convened over forty committee meetings and public hearings. In the period of the processing of the Info Bill, the committee made a total of over 800 changes to the Bill. Therefore, we would like to take this opportunity to congratulate all the members of the Ad hoc Committee, for their unwavering dedication and commitment throughout the processing of the Bill.

The Info Bill, which repeals the Protection of Information Act of 1982 (Act 84 of 1982), provides for the protection of sensitive state information by creating a system of classification, reclassification and declassification of state information. It also creates a framework for the protection of certain valuable state information against alteration, destruction, loss or unlawful disclosure.

The Info Bill resulted in several protests and the establishment of a civil society network that was geared at opposing the Bill. Those opposed to the Bill often describe it as "the biggest affront to democracy since apartheid ended in 1994".

Some of the critics of the Bill even likened it to the elaborately extensive legislation used by the apartheid regime to silencing the freedom of expression that the ANC and many stalwarts of the fight against apartheid championed and fought for with their lives.

On the main, opposition of the Info Bill is largely due to, firstly, misconception that it does not have a public interest defence clause for those seeking to expose wrong-doing, especially whistle-blowers and the media.

Secondly, there are those who continued to argue that "the Bill will be used to cover up corruption and information about tenders, especially at local government level". Thirdly, the phrase "ought reasonably to have known" was generally regarded as "shifting the burden of proof to the accused would probably result in the incarceration of people for no reason". Finally, there were concerns about the severity of the penalties in the disclosure of classified state information.

Our assessment is that the processing of the Bill was reminiscent of the words of former President of the United State of America, John F Kennedy who once said "no matter how big the lie, repeat it often enough and the masses will regard it as the truth." The processing of the Info Bill was characterised by half-truths, distorted conflations and mischievous political deportment, especially by those who remain fiercely opposed to the Bill.

At some point those opposed to the Info Bill seemed to have succeeded in Winston Churchill's assertion that "in wartime, truth is so precious that she should always be attended by a bodyguard of lies." Unfortunately, this was the characterisation of all public discussion and engagement on the Bill throughout the processing of the Bill and even when we went on an elaborate process to educate people to clarify the misconceptions and misinformation about the Bill.

What was even more disconcerting was the fact that even when a plethora of amendments were introduced to address many of the concerns that were raised by the public, civil society organisations and political parties since the introduction of the Bill and subsequent passing by the National Assembly on 22 November 2011, the Info Bill and the processes of the Committee were still treated with extreme cynicism and laced with disparaging public opinion and perception.

The lack of information about the Info Bill did not help the situation.

A survey conducted by Ikapadata in November 2011 revealed that 40% of respondents in townships in Johannesburg, Cape Town and Durban never heard of the Info Bill. This was compounded by the ruthless political opportunism and expediency of some political parties in Parliament and individuals who elected themselves champions of the opposition of the Bill, without clear understanding of pertinent provisions of the Bill.

It is very important to note that all of the main concerns that were raised about the Info Bill were substantially addressed. Firstly, the argument that "the Info Bill lacks a public interest defence clause" is misleading and factually incorrect.

Clause 19 (3) (b) on "Request for access to classified information and status review" obligates the Head of an Organ of State or the Department of State Security to grant a request to declassify state information if "the public interest in the disclosure of the state information clearly outweighs the harm that will arise from disclosure". Obviously, those opposed to the Info Bill would have read this clause especially given the fact that it has always been part of the Info Bill since its first introduction in the National Assembly.

Secondly, the argument that "the Info Bill will be used to cover up corruption" forms part of the biggest misinformation. Section 47(1) of the Info Bill makes wrongful classification of state information to "conceal breaches of an unlawful act or omission, incompetence, inefficiency or administrative error" an offence punishable by imprisonment of up to 15 years. We need to emphasize that as the ANC, we proposed amendments to strengthen this clause by ensuring that it makes a direct reference to the "Prevention and Combating of Corrupt Activities Act of 2004".

As the Committee, we paid considerate attention to broadening the scope of protection offered by clause 43 on the "Disclosure of classified information" to include "possession" of classified state information that "reveals criminal activity, including criminal activity listed in Section 47 of this Act". This section prohibits classification of state information to:

(i) conceal breaches of the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004) or any other unlawful act or omission, incompetence, inefficiency or administrative error; (ii) restrict access to state information in order to limit scrutiny and thereby avoid criticism, and (iii) prevent embarrassment to a person, organisation, or organ of state or agency.

We also expanded the protection offered by clause 43 to include the key pieces of legislation such as the Prevention and Combating of Corrupt Activities Act, 2004 (No. 12 of 2004), Companies Act, 2008 ( Act No. 71 of 2008), the Labour Relations Act (Act No. 66 of 1995) and the National Environmental Management Act (Act No. 107 of 1998).

After a lengthy consultative process between the various political parties that are represented and taking into consideration submissions made by prominent organizations and individuals such as the Congress of South African Trade Unions (COSATU) represented by their General Secretary Zwelinzima Vavi, the Public Protector Adv Thulisiwe Madonsela, Adv George Bizos, the Right to Know, Open Democracy foundation, the Committee took a decision to delete section 1 (4) of the Bill by strengthening clause 1 (3) to avoid any perception that the Bill was intended to undermine the Constitution or any legislation that gives expression to the provisions of the Constitution such as the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000).

We went further by ensuring that the Bill is embedded in the Constitution. We also ensured that the principle of the right of access to information, as a cornerstone of our democracy, is clearly spelled out in the preamble of the Bill.

The phrase "ought to have known" has been deleted in all aspects of the Info Bill except with reference to espionage, with the ANC expressing its detailed response that it was proposing that this phrase be retained as part of our national commitment to wage a concerted fight against information peddling.

In allaying the fears that were expressed by some civil society organisation and individual, particularly Adv George Bizos and COSATU, the Committee made a proposal to define the phrase "ought to have known" to mean "for the purposes of this Act a person ought reasonably to have known or suspected a fact if the conclusions that he or she ought to have reached, are those which would have been reached by a reasonably diligent and vigilant person having both-

(a) the general knowledge, skill, training and experience that may reasonably be expected of a person in his or her position; and (b) the general knowledge, skill, training and experience that he or she in fact has."

The elaborate definition of the phrase "ought to have known" eliminated any ambiguities and perceptions that journalists and any way who discloses information exposing wrong doing would be prosecuted.

After a lengthy process we paid a particular focus on strengthening the protection of Chapter 9 institutions, in order to ensure that the Bill did not unintentionally hinder the important role that these institutions play in protecting our democracy.

Surely, after such an elaborate public consultation process and thorough amendment to address the challenges and concerns raised about the Info Bill, one would expect general support of the Bill.

But one should not be surprised by the continued opposition of Bill. It is due to the disproportionate misinformation paddled on public platforms and the mischievous political deportment of some parties and individuals who are determined to use the processing of the Bill to push newspapers headlines and project themselves and whatever grouping they represent, as the champions of democracy.

As the Committee we believe we did everything we could to ensure that we build on the work of the National Assembly and ensure that we have a constitutionally sound piece of legislation that is informed by the views of our people and bears resonance to the principles of our democracy. We truly believe that we succeeded in this regard.

We want to thank all South Africans, the various provinces, civil society and the media for your input.

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