Info bill: Clash of laws looms

2012-09-05 21:54
(File, Sapa)

(File, Sapa)

Multimedia   ·   User Galleries   ·   News in Pictures Send us your pictures  ·  Send us your stories

Cape Town - The protection of state information bill has been rewritten to general, qualified relief, but the latest draft still makes for a messy clash of laws on access to state documents, analysts say.

The difficulty lies in clause 1(4) of the bill, which seeks to assert its supremacy over any other law that pertains to classified information.

Critics have long warned that this clause renders the bill unconstitutional because it explicitly seeks to have the new measure trump the Promotion of Access to Information Act (PAIA), which was passed in 2000.

Constitutionality aside, the clause had potentially calamitous implications a year or so ago when the so-called secrecy bill still sought to enable, literally, 1001 organs of state, ranging from ministries to museums to parks boards, to classify information

Since then, lawmakers have agreed to restrict the right to classify to the intelligence and defence structures, as well as the top echelons of the police.

This removed the spectre of the new bill shutting down the avenue Paia created more than a decade ago for citizens to access "any information held by the state" needed to exercise their constitutional rights.

Despite the narrower scope of the bill, public hearings in March still heard clear warnings from the likes of the SA Human Rights Commission (SAHRC) and veteran human rights lawyer George Bizos that clause 1(4) must go.

The SAHRC said the clause would not only remove the right to access records protected on the basis of national security from the purview of Paia, but would criminalise such access without any allowance for public interest in the information.

This highlights a pointed difference between the two pieces of legislation.

One of the loudest criticisms of the bill remains its lack of a public interest defence for those prosecuted for exposing state secrets.

PAIA allows for the refusal of documents where their release could prejudice the "defence, security or international relations of the republic".

But it contains a public interest override, which nonetheless obliges the release of the information if the public interest in it clearly outweighs the potential harm.

After two years of debate on clause 1(4), ANC lawmakers reiterated last week that they considered the problem solved by their proposal to remove the phrase "despite section five of the Promotion of Access to Information Act".

Rights groups and the opposition say it is not that simple.

Under the ANC proposal, the clause will now read: "In respect of classified information, this act prevails if there is a conflict between a provision of this act and a provision of another act of Parliament that regulates access to classified information."

The SA History Archives (Saha) points out that it leaves intact the bill's intention to trump PAIA, although it no longer names the prior act.

"Removing the reference to PAIA in the bill does not resolve the conflict between the two clauses, nor does it mean that Paia will automatically override the bill," said Saha advocacy and training outreach officer Tammy O' Connor.

"Instead, if the bill is enacted in the proposed new format, there will be two pieces of legislation that both claim to prevail over the other in the event of conflict."

The Open Democracy Advice Centre (Odac) argues for the deletion of clause 1(4), a step the ANC is resisting in ongoing closed-door meetings with other parties.

The Democratic Alliance is proposing, in the alternative, that the clause remain, but have added to it the words: "except in the case of the application of PAIA".

However, Odac director Alison Tilley said it was not the task of this bill to pronounce on the status of Paia.

"That is not where we need to go. We need to water down or take out clause 1(4)."

Tilley said this would leave PAIA "to sink or swim" in relation to the bill the ANC hopes to finalise by year's end.

There is no ready answer to how the courts would rule on the conflict between the two pieces of information legislation.

Constitutional law expert Pierre de Vos said, theoretically, PAIA enjoys special status as a law written to give effect to the right to information enshrined in the Constitution. But he points out that a court has yet to pronounce on whether it prevails over subsequent legislation.

O'Connor warns that lawmakers cannot be bound by the acts of an earlier legislature, and "therefore the prominence of Paia cannot be viewed by the court as fixed for all time".

She also makes the point that if Paia took a backseat to the new law, the state could refuse to release information purely on the basis that it was classified.

If lawmakers fail to resolve the issue, it could land directly before the Constitutional Court.

Deputy President Kgalema Motlanthe has suggested he would urge President Jacob Zuma to send it to the court for certification, given the controversy the bill has generated.

MPs will meet in committee again on Thursday, with serious points of contention likely to remain.

The Right 2 Know Campaign cautioned against haste on Wednesday and urged the committee to reconsider seven key issues.

These include the Paia anomaly, the lack of a public interest and public domain defences, maximum jail sentences of 25 years, the potential ease with which the right to classify can be accorded to bodies outside the security structures, and the criminalisation of mere possession of classified documents.

- SAPA

Read more on:    sahrc  |  george bizos  |  jacob zuma  |  kgalema motlanthe  |  legislation  |  info bill  |  media
NEXT ON NEWS24X

Boys, 6, die in hit-and-run

2014-04-19 22:37

Read News24’s Comments Policy

24.com publishes all comments posted on articles provided that they adhere to our Comments Policy. Should you wish to report a comment for editorial review, please do so by clicking the 'Report Comment' button to the right of each comment.

Comment on this story
5 comments
Add your comment
Comment 0 characters remaining
 

Inside News24

 
 

'Zuma's legacy will be judged by Nkandla'

The legacy of President Jacob Zuma is contingent on how he deals with the issue of upgrades to his Nkandla homestead, says Cape Town Archbishop Thabo Makgoba.

 
 

Latest elections multimedia

Why Jack Parow wants you to vote on 7 May
The ad the SABC doesn't want to air
Elections 2014 in one cartoon
This year's election posters
 
Traffic
Lottery
 
  • Thursday Sir Lowry's Pass - 05:35 AM
    Road name: Old Sir Lowrys Pass Road
    TRAFFIC LIGHTS not working at Bezweni Road
  • Thursday Cape Town - 05:35 AM
    Road name: Buitengracht Street
    TRAFFIC LIGHTS not working at Waterkant Street
 
More traffic reports...
 

Jobs in Cape Town [change area]

Property [change area]

Travel - Look, Book, Go!

Escape winter, head to Mauritius

Escape winter by spending 7 nights in Mauritius' tropical bliss from R13 215 per person sharing. Includes return flights, airport transfers and accommodation. Book now!

Kalahari.com - shop online today

Get many eggs in one basket!

Gaming bundles: 2 Super Hits games for R99, 3 Disney games for R99 and more + exclusive accessory bundles only available on kalahari.com. While stocks last. Shop now!

25% off bestselling books!

The Real Meal Revolution by Tim Noakes, Jeffrey Archer’s Be Careful What You Wish for, Man’s Search for Meaning by Victor E. Frank and many more titles. Shop now!

Up to 25% off electronics

Buy top electronics and save up to 25%. Such as kalahari.com’s 1# selling product the gobii eReader, Patriot X Porter flash drive, Asus Nexus 7” 3G tablet, Samsung Galaxy SIII, Lenovo G580 Notebook and many more. Shop now!

DStv HD PVR Decoder now R949

The DStv HD PVR Decoder has further revolutionised the television experience with lifelike viewing, sharper images, more vibrant colours and precision picture quality. Now R949, save R550. Offer valid while stocks last. Shop now!

Up to 30% off appliances & homeware

Save up to 30% on appliances and homeware this Easter! Offer valid while stocks last. Shop now.

OLX Free Classifieds [change area]

Samsung Galaxy s4

Mobile, Cell Phones in South Africa, Western Cape, Cape Town. Date October 24

Best bargain in big bay

Real Estate, Houses - Apartments for Sale in South Africa, Western Cape, Cape Town. Date October 25

VW Golf 6, 1.6 Trendline (Excellent condition)

Vehicles, Cars in South Africa, Western Cape, Cape Town. Date October 25

Samsung Galaxy Tab P7500 10.1" Tablet With WiFi & 3G

Samsung Galaxy Tab 10.1 gives you a better experience for...

From R4999.00

I'm shopping for:

Horoscopes
Aquarius
Aquarius

You may be good at organising events but they do take their toll on your energy levels. You may need some time out today just to...read more

There are new stories on the homepage. Click here to see them.
 
English
Afrikaans
isiZulu

Hello 

Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.


Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire 24.com network.

Settings

Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.








Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.