Democratic Alliance (Cape Town)

29 November 2012

South Africa: Secrecy Bill Remains Fatally Flawed

press release

The Protection of State Information Bill has been one of the most controversial pieces of legislation in post-Apartheid South Africa. Since its initial introduction to Parliament in 2008, it has been deliberated upon over a period of some 4 years.

And, despite extensive consultations and deliberations the Bill remains a fatally flawed piece of legislation. Indeed Chair, we believe that this Bill is unconstitutional and must be referred to the Constitutional Court.

There can be no doubt that the amendments proposed by the DA and COPE and grudgingly accepted by the ANC, albeit in a somewhat watered down form, have resulted in significant improvements to the Bill. The acceptance of these amendments by the ANC, despite their flip flopping around on key clauses such as the PAIA override, was brave given the considerable pressure brought to bear by the Minister of State Security as well as officials of the department.

The amendments agreed to is a victory for the opposition who took the concerns of the public to heart and ensured that we pushed for vital changes to be made to the Bill.

These changes were not 'gifts' from the ANC but a result of pressure from civil society and the opposition. The ANC had the opportunity to make amendments in the National Assembly but they did not do so. Instead, in the face of almost universal opposition both in South Africa and internationally they rammed the Bill through late in 2011.

Some of the remaining problems in the Bill are, the minimum sentences, the harshness of sentences, the application of the bill to information classified in terms of the apartheid act of 1982, the possibility of using the espionage section to prosecute persons , such as journalists, who are not involved in espionage, even if what they disclose is in the public interest to disclose, the absence of a fully-fledged public interest defence clause - a major problem - as well as the inclusion of provincial archives and the inclusion of valuable information.

The inclusion of valuable information puts the "spooks" of the State Security department in charge of "protecting" information held in departments such as Home Affairs, Deeds offices, motor licensing, archives, you name it. What a terrifying thought. The Minister and the ANC seem to have completely overlooked all the existing legislation that already deals with the safe-keeping of information by the relevant authorities. Or perhaps not. Perhaps this is part of a plan to make the State Security Agency into a Super Ministry?

Given the extremely high levels of corruption that we see in government today, it is inevitable that the Bill enacted will be used to cover up crime and corruption by those who wish to escape exposure. It is trite to claim that because the Bill makes it a crime to classify criminal activity, that this will prevent people, who have already committed crime, from hiding crime. Where is the logic in that argument?

Honourable Chair, the need for an Act of Parliament that will enable the classification of very limited amounts of state information cannot be denied, but let it be known that this Bill is not the basis for such an act. We beg all right thinking members of this house to join the opposition parties in recognising the universal concerns of civil society.

Do not let down all South Africans and future generations by passing this unconstitutional piece of legislation. To do so would be a travesty for our democracy.

Vote against this monstrous Bill.

Alf Lees

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