Intelligence Minister Siyabonga Cwele is to be grilled by MPs about provisions in the Protection of Information Bill that editors, civil society and opposition MPs fear could lead to de facto censorship. At issue is whether the bill, which is being processed by an ad hoc committee of Parliament, would pass constitutional muster as state advocates say it would - and whether classifying a document under a broad definition of "national interest" would amount to censorship. The bill provides for harsh jail terms of up to 25 years for the disclosure of classified information.
A range of submissions has been made to the committee warning against the inclusion of so wide and vague a definition of "national interest". Despite this, it remains in the latest draft of the bill, as do the penalty clauses. The bill is intended to replace a stringent apartheid-era act governing the classification of state secrets. According to its drafters, it is aimed at providing more constitutionally sound guidelines for classification and facilitating better access to information by the public.
Media and civil society advocacy groups have argued strongly for the inclusion of a clause that would protect those who disclose classified information on the grounds that doing so is in the public interest. The bill has been described as draconian and worse than a 2008 draft that was withdrawn because Parliament ran out of time to deal with concerns about constitutionality.
The chairman of the ad hoc committee, Cecil Burgess (ANC), pledged on Tuesday that all concerns would be put to the minister when he appeared before the committee on Friday. Answering MPs' fears that the minister would merely dictate his preferences, Burgess emphasised that the bill was already before Parliament. "The way forward here is that Parliament will change the bill. "I don't want it to be said that the minister would come here and change the bill. So there is the understanding that the minister may persuade us to change certain things, but he is not going to change it himself."
DA MPs also want Cwele to explain why the bill says its implementation would have no financial implications for the state. National archivist Graham Dominy has told the committee he would require a significant budget to set up the declassification database provided for in the bill. Burgess agreed to a request from DA MPs Dene Smuts and David Maynier that the committee try to gain independent legal opinion on whether the bill was constitutional.
Chief state law adviser Enver Daniels has told the committee he believes the bill will pass constitutional muster and that none of the issues raised by bodies, including the Institute for Democracy and the Centre for Constitutional Rights, has persuaded him otherwise. Writing in the Cape Times, sister to the Pretoria News, Daniels said he stood by this statement because the bill's provisions would have to be weighed against other legislation that protected the public interest. "Many commentators have called for a public interest defence provision, similar to that for defamation cases," Daniels wrote. "That would not affect the constitutionality of the bill, but may fuel the perception that two justice standards exist in South Africa, in breach of the equality provisions in our constitution - one for people who commit ordinary crimes, and one for those who contravene the law on classified information."
Disagreeing with this, Smuts emphasised that even previous intelligence minister Ronnie Kasrils believed there should be no penalties for whistle-blowers or the media for using classified information to expose corruption. The vagueness of definition of the "national interest" made the provisions more onerous, she told the Pretoria News. "It makes the offences so much worse because the definition of 'the national interest' is pure poetry - talking about such nonsense as 'the national interest is multi-faceted', which is the same as diamonds from the Democratic Republic of Congo," Smuts said. "National security did not feature in the offences (described in the 2008 bill), but now it does. "The definition was in the 2008 draft, but not in the offences. This is important because it determines what is 'sensitive' - and what is 'sensitive' is what you classify in the end."
As most opposition parties and constitutional experts have argued, Smuts said if state information were classified on the basis that disclosure would cause "demonstrable harm" to the state, the definition would no longer be needed.
Source: IoL
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