Info bill: Stop, rewind, experts say
Cape Town - The protection of information bill could be improved by lawmakers
returning, in part, to the 2008 version of the draft law, two Wits law
professors argued in a discussion paper released on Friday.
The earlier draft was better in that it did not make the mere act of disclosing classified information a prisonable offence, Professors Iain Currie and Jonathan Klaaren said.
Instead, the 2008 version sought to punish disclosure where it could cause serious harm to the country.
Incorporating this harm test would allow those accused of revealing state secrets to argue that they had done so in the public interest - thereby providing a defence for journalists and whistle-blowers charged with contravening the law.
"The use of this substantive drafting would allow persons to argue and attempt to demonstrate that they have in fact acted in a manner that protected rather than harmed the security of the state."
The two suggested this could represent a compromise out of the current impasse between the government, which has rejected calls for a so-called public interest defence, and opposition parties and activists pleading for its inclusion.
"It appears to us that one could easily argue that a return to the substantive drafting style of the 2008 bill would have much the same benefits as the express inclusion of a public interest defence, without risking some of the dangers of misuse of an explicit public interest defence."
They said the term "public interest" suffered to some extent from the same ambiguity as that of "national interest", which was removed from the bill following vehement objection that it was so vague that it could be used to justify classification of almost anything.
The bill has provoked more public debate than any other legislation drafted in the post-apartheid era since it was re-introduced in 2010, at what Currie and Klaaren term "a low point" in relations between the state and the press.
Critics say it would serve as a deterrent to investigative reporting and whistle-blowing, and the wide scope it allows for classification by all organs of state could be abused to keep citizens in the dark about the government's decisions.
The campaign to have the bill revised was strengthened last month when Cosatu warned it would launch a Constitutional Court challenge if the ANC drove the measure through Parliament without substantial amendments.
In a scathing analysis of the bill, the ruling party ally said it was untenable that workers could be imprisoned for being in possession of evidence of corruption, or passing it on to union representatives.
The penalties in the bill range from a minimum three-year prison sentence for possessing classified information, to 25 years in jail for revealing state secrets.
Currie and Klaaren's paper is a revision of a document they tabled earlier this month at talks between government officials and civil society groups on the bill, organised by the Nelson Mandela Foundation.
The foundation said there would be a follow-up meeting including the South African National Editors' Forum next week.