Protection of Information Bill under fire again

In its document, the Democratic Alliance called for the scrapping of entire chapters of the bill, which is widely seen as a regressive bid to prevent scrutiny and criticism of the state.

This includes chapter two which provides for the classification of so-called valuable information to prevent it from getting lost and destroyed.

DA MP Dene Smuts said valuable information had no place in the bill and using intelligence agents as “the filing clerks of the nation” to safeguard it would simply perpetuate the misguided practices of the Minimum Information Security System (MISS), the post-apartheid guidelines on classifying information.

Instead, she said, the only business of the bill should be the protection of intelligence, international relations and technological secrets.

Smuts said as it stands, the bill seeks to entrench the MISS in law by stipulating that its application be underpinned by regulations replicating the system’s guidelines, allowing the intelligence services to continue exercising control over information in state departments.

She said this cannot be allowed as the MISS is unconstitutional because it allows for information to be classified without criteria and to be restricted when its release would “hamper or cause an inconvenience to the individual or institution”.

This, she said, means that “inconvenient truths can thus be classified away, safe from scrutiny”.

A major concern for all opposition parties is a definition in the current draft of the bill that gives the heads of all organs of state the power to classify information.

According to the Institute for Democracy in Africa (Idasa) there are 1,001 bodies that would have the right to file information as secret under the proposed law, which prescribes minimum prison sentences for all who leak classified information.

The list it gave the ad hoc committee drafting the bill includes all universities, state-owned corporations such as Eskom, the South African Weather Service, the Johannesburg zoo and the Voortrekker Museum.

Idasa has warned committee chairman Cecil Burgess that Parliament should not seek to pass legislation without realising its full scope.

The African Christian Democratic Party submitted that the definition of organs of state be narrowed down, along with that of national security as a cause for classification.

“These amendments together with the insertion of a public interest defence would make the information bill constitutionally more defensible,” ACDP MP Steve Swart said.

Swart pointed out that the Protection of Access to Information Act (PAIA) already allows for the disclosure of information on defence, security and foreign relations if it is in the public interest.

“Clearly, if documents can be released under PAIA in the public interest despite the threat that the contents pose to national security, it would be contradictory and unfair in parallel circumstances to criminalise the access, disclosure and continued possession of classified documents that are significant for the public.”

Inkatha Freedom Party MP Mario Oriani-Ambrosini called for the bill to be harmonised with PAIA and for a clause to be inserted stating that information can be classified only if its release objectively posed a clear and present threat to national security.

He said the opposition feared that the ANC would at the end of the day ignore a wealth of submissions from the opposition, media and rights activists criticising the bill and submit it to Parliament for approval in a still repressive form.

If this happens, a Constitutional Court challenge is widely expected. Smuts said the bill would “crash for constitutionality at the first hurdle” but Oriani-Ambrosini was less sure a legal challenge would succeed because of the limitations clause in the bill of rights.

He said Parliament had a moral duty to go beyond what is merely constitutional and internationally acceptable and pass a law protecting transparency and freedom of speech.

“We live in a season driven by securocrats… best practice is not good enough to protect transparency.”

The calls for narrower definitions and a public interest defence clause to protect journalists have repeatedly been made in the committee in recent months but failed to find agreement with the ANC members.

This has left opposition MPs to feel the drafting process is in deadlock as the committee’s June 24 deadline for finalising the bill and reporting to the National Assembly looms.


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Protection of Information Bill under fire again