Following Mail & Guardian Online report earlier on the passing of the “Info Bill” in Parliament – the ruling African National Congress released a statement saying it welcomed the National Assembly’s passing of the Protection of State Information Bill. In welcoming the bill the ruling party said this was an “essentially” security bill and “not a media Bill” which it claimed was aimed at “protecting the national security of the Republic of South Africa”.
The ANC claimed in a statement released a few minutes ago – which I received in my email (Yes, I have subscribed to the ruling party’s Press and media statements) – saying the bill “is firmly in line with best international practice as states have constitutional obligations to protect their people and territorial integrity”.
Said the ANC in a statement:
The Bill is a consequence of the acknowledgment that there are still inconsistencies and discrepancies in the current Protection of Information Act, 1982, which presently regulates protection of disclosure of certain information. A review of the current Act revealed that it is outdated, as it contains some provisions that are contrary to the Constitution and other legislation in that it contains legal presumptions which are deemed to be unconstitutional. It also does not provide sufficient protection for the State against information peddlers and current trends concerning espionage.
The current protection mechanism, some of which was inherited from the apartheid era, encourages needless protection of huge amounts of information. There still exists some degree of default position of secrecy. This approach is inconsistent with South Africa’s new constitutional order. The Bill aims to balance the presumption of secrecy with a presumption of openness. The consequence flowing from the assent of the Bill into law is to significantly reduce the volume of information classified but at the same time to strengthen the protection of state information that truly requires protection.
The aim is to provide a statutory framework which provides direction to those in government who are charged with information protection; substantially reduce the amount of state information that is protected from disclosure; provide more effective protection to that information that truly requires safeguarding; and to align the information regime with the values, rights and freedoms enshrined in the Constitution.
The objects of the Bill aims to regulate the manner in which state information may be protected and promote transparency and accountability in governance.
KEY PRINCIPLES OF STATE INFORMATION:
Access to state information is a basic human right and promotes human dignity, freedom and the achievement of equality. The free flow of state information promotes openness, responsiveness, informed debate, accountability and good governance. However, some confidentiality and secrecy is vital to protect lives, to enhance and to protect the freedom and security of persons, bring criminals to justice, protect the national security and to engage in effective governance and diplomacy.
The bill recognises further that measures to protect state information should not infringe unduly on personal rights and liberties or make the rights and liberties of citizens unduly dependent on administrative decisions.
CLASSIFICATION AND DECLASSIFICATION OF STATE INFORMATION:
Classified information is sensitive information which is in material or record form. Classified information must be protected from unlawful disclosure and against alteration, destruction or loss; and must be safeguarded according to the extent of harm that could result from its unlawful disclosure. State information may be classified as confidential, secret, or top secret.
Secrecy is justifiable only when it is necessary to protect the national security. Classification of state information may not be used inter alia, to: conceal an unlawful act or omission, incompetence, inefficiency or administrative error; restrict access to state information in order to limit scrutiny and thereby avoid criticism; prevent embarrassment to a person, organisation, or organ of state or agency; and unlawfully restrain or lessen competition.
The Bill is necessary and can stand cofacie a reasonable and justifiable limitation of the right to freedom of expression; and is purposed to protect the national interest which includes protection of life, protection of the interest of justice, and protection of the freedom and security of persons. The Bill is not only prohibitive but to an extent imperative as it creates a legislative framework not only for classification but also declassification of state information. The Bill not only deters and seeks to prevent human rights infringement but has built-in safeguards to ensure fairness and justice in implementation.
The Protection of State Information Bill is essentially a security Bill aimed at protecting the national security of the Republic of South Africa. It is firmly in line with best international practice as states have constitutional obligations to protect their people and territorial integrity.
RIGHT OF WHISTLEBLOWERS:
The rights of whistleblowers are not prejudiced in any manner. The Bill provides that any person who unlawfully and intentionally discloses classified information in contravention of the Act is guilty of an offence, except where such disclosure is protected under the Protected Disclosures Act, 26 of 2000 (commonly referred to as the “Whistleblowers Act”), or section 159 of the Companies Act, 71 of 2008; or “authorized by any other law”.
The Whistleblowers Act sets out detailed procedures and steps that whistleblowers must follow when disclosing unlawful activities, incompetence or corruption in organs of state. The Bill does not interfere with these rights of whistleblowers.
PUBLIC INTEREST DEFENCE:
A “public interest defence” would allow someone who is criminally charged for unlawfully disclosing classified information, to plead as a defence in court to such a charge, that such disclosure was made in the public interest.
This approach could have serious consequences for the national security of the Republic if it was later determined by the court that such claims were in fact not true and the disclosure was in fact not in the public interest. The ANC prefers an approach where if anyone comes across classified information and wants to use it, that person must follow the procedures set out in the Bill and apply for permission to do so. The Bill also has a faster procedure where a person can apply for access to classified information if it is linked to an imminent and serious public safety or environmental risk.
An unfortunate consequence of such a defence lies in the fact that it would allow a person wanting to disclose classified information to subjectively decide that the disclosure of the information in his or her possession, is in “the public interest”. If later, a court found that the disclosure of such information was not in the “public interest”, irreparable damage would have been suffered to the national security of the country since the information would already then be in the public domain.
Instead a “public interest override”, which is similar to section 46 in Promotion of Access to Information Act (PAIA), has been built into the Bill. This allows journalists who come across classified information and believe that it is in a public interest to publish it to apply to the court to have that information declassified.
The Office of the ANC Chief Whip is gravely concerned that the media has been less than honest in its reports on the Bill. While we respect the position of the media on this Bill, and its campaign against it, we still expect the media to remain objective.