South Africa: Amabhungane Warns New Bill Risks Repeating Errors of Apartheid Law

A submission to Parliament by the amaBhungane Centre for Investigative Journalism on the proposed Critical Infrastructure Bill has been welcomed for expressly raising the omission of public interest and public domain defence clauses in the Bill.

These are issues that have not yet been raised in the extensive public participation process, according to the Police Portfolio Committee.

In its submission amaBhungane referred in particular to the clause 26(2) schedule of offences and penalties in the Bill, warning of its "potential chilling effect" on investigative journalists, the media and the broader public who wished to access or disclose information in the public interest or in the interest of justice.

The Bill has come under fire particularly for its draconian penalties for defaulters, which include imprisonment of up to 30 years, a fine or both.

amaBhungane said it shared some reservations of the more than 15 human rights groups who have made public submissions.

The proposed Bill, which is being drafted to replace the National Key Points Act of 1980, has been criticised for replicating elements of the apartheid-era legislation. In some of the submissions that have already been heard it has been described as "vague", "draconian" and "possibly unconstitutional".

amaBhungane made the point that it shared some of the reservations expressed by the more than 15 civil society and human rights groups who have already been heard in the public participation process.

It chose, however, to focus on matters particularly of concern to its area of work, which is investigative journalism, and pointed out that the Bill in its current form would have prevented public exposure of the Nkandla upgrades, for example.

Its submission stated that, "important information, images, documentary evidence which may reveal a contravention of the law or misuse of public funds may be suppressed under the threat of severe criminal sanction.

"Similar provisions in the National Key Points (NKP) Act had served to obstruct and frustrate media reporting, publication of images and access to information. The clauses in their current form repeat the errors of the NKP Act."

Clause 26(2) imposes penalties on a range of "unlawful actions" at critical infrastructure sites. amaBhungane's Advocacy Coordinator Karabo Rajuili took issue particularly with what she called the "catch all" nature of the term "unlawful". The amaBhungame Advocacy Programme is particularly concerned with securing the information rights that investigative journalists need to perform their work.

She proposed that the word "unlawful" be replaced to allow for disclosure when it is clearly in the public interest to do so.

The submission used as an example the provisions set out in the Promotion of Access to Information Act (PAIA) of 2000 which recognises the need for disclosure of information when it would reveal evidence of "a substantial contravention" or failure to comply with the law. It also recognises the need for publication when withholding it poses a public risk and when the release of information is in the public interests and disclosure clearly outweighs the harm of publication.

"The clauses in their current form repeat the errors of the NKP [National Key Point] Act," the submission argues. It states "The chilling effect of clause 26 (2)(d), and the non-qualification of unlawful in the entirety of clause 26(2) on media freedom and the free flow of information in the public interest cannot be overstated.

"Important information, images, documentary evidence which may reveal a contravention of the law or misuse of public funds, may be suppressed under the threat of severe criminal sanction."

Reference is also made in the submission to the Protection of State Information Bill, which was passed by both Houses in 2013 but still awaits the presidential signature. Adequate public interest defence was a key demand in that highly controversial Bill and limited public interest exceptions were ultimately accepted although they didn't go so far as the inclusion of "imminent public danger".

The other chief demand raised by amaBhungane is the inclusion of "public domain". The point was made that in South Africa it is well-established in law that once information is no longer confidential its secrecy can no longer be protected.

Rajuili cited the Constitutional Court case, in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services that recognised that the concept of public domain is an important factor in determining whether information should be released to the public.

The failure to include a public domain defence in the final draft of the Protection of State Information Bill "continues to be a contentious issue and is subject to a possible constitutional challenge by civil society organisations should POSIB [the Protection of State Information Bill] be signed into law".

amaBhungane had direct experience of this "undue censorship" when it tried to report on allegations of wrong-doing by former presidential spokesperson Mac Maharaj and his wife concerning an inquiry by the Scorpions on arms deal-related bribery allegations that had been at least partially reported elsewhere.

After some years of legal contestation the Supreme Court of Appeal rejected the notion of imposing a blanket ban on disclosures, but said decisions required "an appropriate balance between securing the criminal justice system and upholding freedom of expression."

"Moreover, the judgement confirmed that where classified information was already in the public domain, further penalities should not apply. It is this appropriate balance which should be present in the Critical Infrastructure Protection Bill, to prevent a repeat of such egregious violations of the right of the media to publish," amaBhungane stated in its submission.

The submission concluded: "We therefore recommend the clause 26 (2)(c) be revised to include the public interest defence present in PAIA, and a specific public domain defence".

The Critical Infrastructure Protection Bill was tabled in Parliament on 15 September 2017 to replace the National Key Points Act. Like its legal predecessor, it would be responsible for identifying and declaring what would now be called critical infrastructure areas, and constraining visual and other information related to activity in such areas.

Information sourced from the Parliamentary Monitoring Group

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Author: Moira Levy

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