Buthelezi refused to shred report - IFP
Cape Town - IFP president Mangosuthu Buthelezi was ordered by the Mbeki Cabinet in 2003 to destroy the critical report of the Van Zyl Slabbert Commission on the Electoral Act, but refused, MP Mario Oriani-Ambrosini claimed on Tuesday.
Instead, Buthelezi, who was then home affairs minister, gave copies to university libraries around the country "where you can find them today", he said.
"He was called back and rapped over the knuckles and he said it is fine, if you want to fire me, fire me or get stuffed," said Oriani-Ambrosini, who served as Buthelezi's special adviser and enjoyed top secret security clearance.
"Of all his colleagues, only I and Zola Skweyiya backed him," he said.
Oriani-Ambrosini made the revelation during a sitting of the ad hoc committee drafting the contentious protection of information bill to illustrate a problem with its definition of public domain.
It outraged ruling party MPs who warned that he was breaking the law and that they did not want to hear any more.
"I'm concerned about whether what you are putting in the public domain is already out there. If it is not, then I cannot allow you to disclose it in here. It might be complicit to an unlawful activity," said ANC committee chair Cecil Burgess.
"If these things are classified there, I cannot entertain it here. Therefore I am going to rule that you must withdraw that information and I will take an opinion on it."
Oriani-Ambrosini confirmed that he was indeed making public classified information, but said he was protected by parliamentary privilege.
"It is a piece of classified Cabinet information covered under the Secrecy Act which I have the privilege under the Constitution to disclose to this committee because it is a submission to a committee and as such is privileged."
He said he had made the point to show that if the bill became law as it stood, any fellow MP who made a note of what he had disclosed would be deemed to be in possession of classified information and imprisoned.
"In terms of the bill, if it were law, each of you would have to go to prison for 15 years... because information is being transferred and the mere possession of that information is a crime.
"Let's assume that you are shocked, as you should be, and you are going to seek a legal opinion. You are going to convey that piece of information to somebody else. Now conveying a piece of information, it's another 20 years."
These remarks drew another reprimand from Burgess, who lamented the provocative manner in which the IFP MP had sought to make a point.
"The way you put it across was in bad taste. People who have security clearance should not behave in the manner in which you have behaved."
Dene Smuts, of the Democratic Alliance, said she stood with her opposition colleague in fighting untenable provisions in the bill which criminalised and harshly punished possession of classified information, but that his legal argument was flawed.
If Oriani-Ambrosini was seeking to extend the definition of public domain so as to absolve those who subsequently dealt with leaked secret information, his attempt would fail in coming up against a 2008 Constitutional Court ruling written by Deputy Chief Justice Dikgang Moseneke.
In Independent Newspapers v the Minister for Intelligence Services and another, the court found that whether or not a classified document "has been disclosed to some degree in the public domain is a relevant, but not decisive factor in determining whether the document deserves continued protection".
It went on to state that a leaked confidential document does not summarily lose its classification, because this would encourage people who would benefit from their misconduct.
The bill gives the state far-reaching powers to classify information as secret and has been widely described as a throwback to the apartheid era.
Amid a public outcry last year, the state security ministry removed two offending provisions, including one allowing classification in the national interest.
Concerns remain over the right it gives hundreds of organs of state to classify information and the lack of public interest defence to protect the media and whistleblowers.
In a surprise move, ANC MP Vytjie Mentor on Tuesday said the committee should debate the question of a public interest defence as it could clear a major obstacle in finalising the bill. Her call drew a lukewarm response from Burgess.
The Van Zyl Slabbert Commission found that South Africa's present electoral system lacks accountability and proposed a system akin to the local government model, which combines constituencies and proportional representation.