Secrecy Bill gets green light

2013-04-25 18:06

Parliament has passed the Protection of State Information Bill after three years of debate and redrafting, but opponents signalled a court challenge is still on the cards.

“The fight is not over. The fact is that this bill is still flawed,” Democratic Alliance parliamentary leader Lindiwe Mazibuko told the National Assembly before it adopted the bill by 189 votes against 74, with one abstention.

All opposition parties continued to object to the bill, with some raising limited concerns and others rejecting it outright as a threat to democracy, before the ANC majority won the day.

This version of the bill differs considerably from that which the ANC drove through the legislature amid an outcry in 2011, before a raft of changes were introduced by the National Council of Provinces last year.

State Security Minister Siyabonga Cwele said remaining unhappiness was now, in his view, a matter of “policy preferences which may be portrayed by others as constitutional concerns”.

“It is an immensely improved bill despite the protest you may see today,” he said.

Mazibuko agreed that the changes made for a better bill but insisted it was unconstitutional because it would allow Parliament to interfere with record keeping by provincial archives.

This was strictly a provincial competence, she said.

Cwele countered that the DA would “waste money” if it went to court. He denied that the bill gave Parliament the power to prescribe to provinces how to deal with classified information.

Instead, he said, “it provides that once information is declassified by security agencies it will be handed over to the national archives or other archives ... this is done so that our people can have access to the information.”

Cwele lost out to progressives in the ANC during the redrafting process when they went against his wishes by inserting a clause that would protect whistle-blowers who disclose classified information to reveal a crime, from prosecution.

African Christian Democratic Party MP Steve Swart called this clause “a stride or a leap in the right direction” and added:

“In conscience, we cannot call this a secrecy bill anymore.”

But Swart said he would join forces with the DA in pushing for a review of the bill on the basis that it should not deal with archives.

Both parties claim that if this clause is included, the processing of the bill was fatally flawed.

The ACDP also raised veteran human rights lawyer George Bizos’ criticism that the bill placed too low a burden of proof on the state in cases of espionage, which carries a 25-year prison sentence.

This is one point raised by Bizos in public hearings last year which the ruling party ignored though it admitted many concessions made by its lawmakers were based on his submission.

This included scrapping a clause which imposed heavy jail sentences for revealing any information relating to a “state security matter”, and saw critics like the Congress of SA Trade Unions warn South Africa risked returning to a police state.

But today, Inkatha Freedom Party MP Mario Oriani-Ambrosini warned that the public should not be fooled into thinking that the scope of the official secrets act had now been narrowed sufficiently.

He said the fact that the power to classify could still be extended to other organs of state was a threat to democracy that would haunt future generations.

“This is a bad bill, and yet you will vote for it. That is where the heart of democracy perishes,” he said.

Cosatu raised the same point in a statement appealing to MPs not to pass the bill, saying the scope of the bill remained overly broad and it still held the potential “to allow just about any state information to be classified”.

The South African National Editors’ Forum also cautioned that the bill “still has the potential to be used as an instrument of secrecy in a democracy that can only thrive in a climate of openness”.

Like opposition parties, Cosatu and Sanef appealed to President Jacob Zuma to refer the bill to the Constitutional Court.

However, it is reliably understood from government sources that he does not intend doing so.

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