MPs Adopt Protection of State Information Bill Report

MPs adopted a report on Tuesday approving changes made by the legislature’s second house last year.

“The report is adopted. It is likely to be on the agenda on Thursday,” said Cecil Burgess, the chairperson of the ad hoc committee that processed the contentious Bill.

Opposition parties and the ANC unanimously approved the changes. However, the Democratic Alliance, Congress of the People, and African Christian Democratic Party all signalled that they continued to oppose the Bill.

The parties believe it remains unconstitutional largely because it seeks to legislate the keeping of records of provincial archives. They believe this has no place in an official secrets Act.

“It is a provincial competence,” DA MP Dene Smuts said.

Smuts has argued that if the Bill were to deal with provincial archives it should have been processed as a section 76 Bill, not a section 75 Bill as was the case.

The opposition plans to petition President Jacob Zuma under section 79 of the Constitution to refer the Bill back to MPs to scrap the provision on archives from the Bill, or refer it directly to the Constitutional Court for review.

Joining forces

Failing the president agreeing to either step, there was a strong likelihood of opposition parties joining forces to challenge the Bill in the highest court, ACDP MP Steve Swart said.

Apart from the provision on archives, the ACDP also continues to contest the way the Bill’s provision on espionage was drafted.

The party holds that veteran human rights lawyer George Bizos was right to argue that the burden of proof it places on the state is too light for a crime that carries a maximum jail sentence of 25 years.

But Swart, like other opposition MPs, welcomed far-reaching changes made to the bill by members of the National Council of Provinces, often in patent opposition to the hawkish demands of the state security ministry.

“I do not think this Bill can still in good conscience be called a ‘secrecy Bill’,” said Swart.

He singled out clause 41(c) of the Bill, which protects anybody who publishes classified information to reveal a crime, from prosecution.

The clause was the compromise arrived at after opposition parties clamoured for a public interest defence to protect whistle-blowers and journalists who revealed secret information for the greater good from being sent to jail.

Proposals

The NCOP members also dropped from the Bill a clause which sought to make the new law trump the progressive Promotion of Access to Information Act, and another which imposed heavy jail sentences for revealing any information relating to a “state security matter”.

Critics, including the Congress of South African Trade Unions, argued persuasively the latter clause would create an all-powerful intelligence apparatus.

The changes brought by the NCOP drafting committee were largely based on proposals made by Bizos during heated public hearings on the Bill last year.

The Bill, which was tabled in 2010, provoked an unprecedented outcry. Critics called it a throwback to apartheid-era secrecy.

Activists, who campaigned against its adoption for three years, welcomed the changes but remained far more critical of the final version than the opposition.

Murray Hunter from the Right2Know campaign said though the amended Bill contained laudable improvements it was still far from being a progressive official secrets Act.

“I don’t understand their position of embracing a bill, but at the same time preparing to challenge it in the Constitutional Court,” he said of the opposition’s position.

“We continue to reject the Bill. It is a Bill that comes so far but not far enough. We were looking for a Bill that seeks to protect openness and transparency while protecting law and security.

“Unfortunately this is part of a wave of 21st century bills we are seeing around the world that sell out the public for the sake of security.” – Sapa