The Protection of State Information Bill should be withdrawn and redrafted, the Nelson Mandela Centre for Memory said on Wednesday.
Verne Harris, the director of the centre’s archive, said the bill remained unconstitutional despite amendments made at the last minute before it was passed by Parliament in April.
One of its fundamental flaws was that it sought to set up a regime of dealing with state information that ran parallel to that envisaged in the Constitution and the progressive Promotion of Access to Information Act (PAIA), he said.
Harris argued that the bill does so by excluding the application of PAIA to classified information, instead of working in harmony with the 2002 law.
“The apartheid state set up parallel state information access and record-keeping regimes, one for classified information and one for all others.
“This was the basis for the secrecy and lack of accountability which characterised the apartheid system.”
In the final years of the apartheid era, this allowed the state to destroy “tons” of classified records without due process,” Harris said.
“A democratic South Africa does not want to return to parallel regimes.”
Harris was among those who made submissions to the committee that drafted the bill during its long passage through Parliament, and argued that it would lead to regressive state secrecy and pose a threat to whistle-blowers and the media.
The ANC was applauded for including a clause in the final version of the bill which protected them from prosecution for revealing information that was classified to conceal a crime.
But Cosatu has maintained that this does not go far enough to spare those who expose wrongdoing from facing charges and potentially lengthy jail terms.
Harris said the bill remained a threat in this sense because it criminalised the mere act of disclosing classified information, instead of seeking to criminalise the act where it resulted in harm to the country.
He called for a return to the 2008 version of the legislation, which made way for a more controversial draft introduced in 2010 and gradually whittled into the bill passed this year.
“The only way forward now, in our view, is backward. Withdraw the bill and start from scratch.”
The bill has not yet been signed into law by President Jacob Zuma and he is being petitioned by activists not to do so, but to refer it to the Constitutional Court for certification.
The presidency could not be reached for comment on Wednesday.