Info bill - court challenge expected

2011-09-02 22:36

Cape Town - Lawmakers finalised the protection of information bill on Friday, but failed to safeguard disclosure of state secrets where this would serve the public interest, making a constitutional review all but certain.

After a year of bitter wrangling in the legislature, the ANC voted down opposition amendments to include a public interest defence in the legislation.

Activists, media and the African Christian Democratic Party (ACDP) said they were ready to take the matter to the Constitutional Court, because the final draft placed excessive limitations on the freedom of expression.

"We think it will prove unconstitutional," said Alison Tilley of the Open Democracy Advice Centre.

The ACDP's Steve Swart said he would petition President Jacob Zuma to refer the legislation to the Constitutional Court before he signs it into law.

"We have made very good progress on the bill, apart from the public interest defence. It is a major issue and it makes the bill open to challenge and therefore we will ask the president to refer it to the Constitutional Court for its decision."

Tilley said it was unlikely a challenge would wait until somebody was charged under the new legislation.

"We will be able to move sooner rather than later. Our position is that the point where the president certifies the bill as constitutional, is the point at which it can be taken on review.

"We are deeply disappointed that a public interest defence was not included. It means that journalists and others are not protected for disclosing evidence of state malpractice."

Mail & Guardian editor Nic Dawes said he had no doubt the bill was unconstitutional and the newspaper would be part of an eventual court challenge.

"The bill does not appropriately balance the national security with the need for openess in a democratic society."

The new law will repeal apartheid-era legislation dating from 1982, but when it was first introduced critics labelled it an attempt to return to the oppressive secrecy of the old regime.

Civil rights groups formed a broad coalition to oppose the draft act and said on Friday a legal challenge was likely to be a group effort.

In June, after ANC alliance partner, the Congress of SA Trade Unions (Cosatu) added its voice to criticism of the bill, the ruling party moved to limit the definition of national security as cause for classification, and restrict the right to classify to intelligence and security structures.

It also agreed to scrap minimum sentences for all acts criminalised in the bill, apart from espionage.

Concessions

The opposition on Friday welcomed these concessions as victories in their struggle to salvage the legislation.

Said the DA's Dene Smuts: "We have rewritten this bill as a decent piece of intelligence and classification law. It is only in the offences clauses that it has gone wrong, to our enormous regret.

"We tried hard to get a public interest defence for our media and anybody else. And we tried hard to get rid of the possession clause."

Clause 15 of the bill states that somebody who knowingly comes into possession of a classified document must hand it to the police or relevant authority.

This has been described by the DA as an untenable attempt to force journalists to reveal sources of leaked documents.

The party also criticised a clause that introduces maximum prison sentences of 25 years for disclosing classified information about the intelligence services - five times the top sentence for disclosing other classified information.

The state security ministry, which kept a watchful presence in the drafting committee throughout, said a public interest defence would render the bill worthless.

"We reiterate our assertion - which we made in response to the public hearings - that to include such a defence would be to shred the bill even before it becomes law."

It also argued the bill provided adequate protection for whistleblowers, a point Cosatu still contests.

The ad hoc committee will meet one last time on Monday to approve the final draft following the insertion of a cost estimate. This has become necessary since the redraft provides for the establishment of a classification review panel, but is considered a mere formality.

The bill will be put to the vote in the National Assembly this month.

- SAPA