Cosatu: Secrecy Bill will create a 'police state'

Cosatu will be the first to challenge the Protection of State Information Bill in court because it risks turning South Africa into a security state again, general secretary Zwelinzima Vavi warned on Thursday. Vavi said that although the Bill was redrafted under pressure from the Congress of South African Trade Unions, the version passed by the National Assembly last year still raised the spectre of abuse of classification to conceal corruption.

He told MPs the scope of the draft legislation was too wide, the penalties it imposed disproportionate, and the potential impact on South Africa's democratic values devastating. "You have to be concerned that the scope of the Bill is extended way beyond what is necessary ... it takes a huge swipe at everything that moves," he told a third day of public hearings on the secrecy Bill by the National Council of Provinces.

Cosatu's biggest fear was the Bill might "inadvertently draw us closer to a threat of entrenching a security state". "Back to where we come from -- the police state. Everything marked confidential and everybody seeing something marked confidential suddenly fearing 15 to 25 year imprisonment." Reminding MPs that he represented two million union members -- and voters -- Vavi said the Bill was ripe for constitutional challenge on several grounds and Cosatu would not be deterred by the fact that it would find itself on the same side as opposition parties. He singled out clause 3 (2) (b), which allowed the minister of state security to confer the power to classify information on any other state entity, and clause 49, which bans the publication of anything deemed a state security matter, as unacceptable. "You cannot give the minister a blanket right. What we fear is that if you give such a blanket right you might end up with the lease agreements between the police and the various agencies being classified. That is very, very dangerous. Please don't pass a law you will regret in future," he said. Had the Bill been law, these provisions and those that would send journalists to jail for disclosing state secrets might have meant that two scandal-tainted ministers sacked last year -- Sicelo Shiceka and Gwen Mahlangu-Nkabinde -- would still be in their posts, Vavi said. "Just close your eyes and think if we would have seen the backs of two ministers last year. We would have not known that if it had not been for the excellent work of the media," he said, adding that the Bill was not the place to address concerns about media ownership and bias.

"The persecution of the media would only exacerbate the problems of inaccuracy and bias. In our view, it is necessary to enhance investigative reporting in the public interest. However as the Bill places extensive restrictions on the access and disclosure of classified information, it would necessarily severely curtail this objective."

Vavi went on to bemoan the Bill's assertion, contained in clause 1 (4), that it trumped the progressive Promotion of Access to Information Act. "What it means is that fundamental piece of transformation becomes secondary to security legislation. We think that is very dangerous." Furthermore, the draft law's provisions on whistleblowers -- many of them union members -- who disclosed classified information to reveal wrongdoing was plainly unconstitutional. Clause 43 offered exemption from prosecution only if the revelations pertained to the whistleblower's employer and, in addition, shifted the burden of proof from the state to the accused. "We have said if these types of clauses go through then we will be left with no choice but to approach the Constitutional Court," he said. "We will be the first to arrive there. Our lawyers are standing very ready to do so."

Veteran human rights lawyer George Bizos, appearing on behalf of the Legal Resources Centre (LRC), listed seven fundamental flaws in the Bill and concurred that it violated the Constitution. The LRC agreed with Vavi's criticism of the heavy onus the Bill sought to place on those accused of breaching it, saying it could see somebody "condemned to 25 years in jail for being stupid".

Bizos urged MPs to refer the Bill to the Constitutional Court, warning that if it were enacted in its current form "there will be a very long queue of applicants to take the president, the minister of justice to court". He then deviated from his text to deplore the government's planned assessment of the Constitutional Court and Supreme Court of Appeal and urged the government to follow former president Nelson Mandela's example in respecting the courts.

Vavi said he found succour in the fact that Mandela's former defence lawyer shared his views on the Bill. "It gives us comfort that you are in the same corner," he said.

Source: Mail & Guardian

Bizos: Secrecy Bill 'threatens values' of Constitution

Veteran human rights lawyer George Bizos argued in a submission to Parliament that the Protection of State Information Bill is unconstitutional on several counts. "The current draft of the Bill, as it stands, runs contrary to and indeed threatens many of the fundamental values and principles enshrined in the Constitution," he wrote.

Bizos, from the Legal Resources Centre's constitutional litigation unit, prepared the submission on behalf of human rights organisation Passop. It is one of 293 written presentations sent to the National Council of Provinces' ad hoc committee processing the Bill after it was passed by the National Assembly last year amid a public outcry. Nelson Mandela's former defence lawyer enumerated seven flaws in the Bill, starting with the absence of a public interest defence. "We view a public interest defence as imperative. Such a defence would exempt from prosecution certain individuals in limited and appropriate circumstances where the disclosure has been made in public interest."

In Bizos's view, the Bill would undermine the provisions of the Promotion of Access to Information Act (Paia) of 2000 and its status as the supreme law giving effect to section 32 of the Constitution, in which citizens' right to access to information held by the state is enshrined. Paia makes disclosure in the public interest mandatory in cases where the information would reveal the commission of a crime, or the existence of imminent public safety risk or environmental risk. Section five of Paia also states that it applies to the exclusion of any act that restricts disclosure or is materially inconsistent with its provisions. Yet, the Protection of State Information Bill in section 1(4) explicitly states that "despite" section five of Paia, it trumps any other law relating to classified information.

Bizos wrote: "Any proposed legislation that seeks to displace the clear provisions of Paia also violates section 32 of the Constitution and is thus unconstitutional. "The Bill's attempt to trump Paia, a constitutionally-mandated statute, is a further indication of the Bill's overall unconstitutionality." He notes that those who defend the absence of a public interest defence have argued that such a clause was unnecessary because the Bill criminalises wrongful classification.

The argument is wrong, Bizos said, because the draft law does not allow those prosecuted for disclosing state information to argue in defence that it was wrongly classified to begin with. "This further ignores the practical reality that improperly classified information will be difficult, if not impossible, to detect and challenge without the efforts of investigative journalists and whistleblowers who will be hamstrung in their ability to bring these illegal classifications to light if they fear lengthy jail terms."

Constitutional law expert Pierre de Vos said he agreed with Bizos because the Bill was drafted in such a manner as to criminalise disclosure of classified information, regardless of whether the classification was lawful. Bizos also faulted the Bill for allowing the minister of state security to confer the power to classify information on other ministers. This usurps the principle of accountability enshrined in section one of the Constitution because it removes the oversight of a particular function from Parliament, and places it with the delegating minister. He went on to say that the legislation runs counter to criminal law by basing liability not on the accused's intention, but on the far lower standard of proof that he or she "ought to have known" they were disclosing a secret.

Bizos also said that imposing prison sentences of up to 25 years for the offences in the Bill is excessive and that the Classification Review Panel it seeks to establish will not be seen as independent or impartial. This was because a member of the panel could be removed by a majority vote in the National Assembly, raising a reasonable suspicion of political bias.

Finally, he said the Bill flouts the constitutionally-mandated Promotion of Just Administration Act by potentially ousting the jurisdiction of the high court to review classification -- which is an administrative act.

The submissions include a 20-page letter from public protector Thuli Madonsela, who warned that it jeopardises freedom of expression and her ability to do her job by preventing journalists and whistleblowers from reporting abuses.

The Congress of South African Trade Unions (Cosatu), in its contribution, calls for the inclusion of a public interest defence and foresaw the Bill would "worryingly" have the effect of "entrenching authority through a security state". Cosatu has, along with rights groups, media houses and opposition parties, threatened to challenge the Bill in the Constitutional Court if it is signed into law in its current form.

The ad hoc committee will meet on Wednesday to schedule further hearings on the Bill.

Source: Mail & Guardian