Info bill defies Constitution, MPs told

2012-03-30 19:31
Cape Town - The protection of state information bill falls woefully short on safeguards to avoid South Africa becoming "a society of secrets", MPs heard on Friday.

The Right2Know (R2K) campaign said the bill defied the constitutional imperatives of openness and transparency by placing national security, as a cause for classification, above these.

"What we are asking for is a balancing act between national security and access to information. We don't think that's unreasonable," co-ordinator of the pressure group Murray Hunter told a final day of public hearings on the draft law.

Hunter said by attempting to trump the progressive Promotion of Access to Information Act (PAIA), the bill would rob South Africans of a fundamental post-apartheid guarantee to access state information.

This meant it would "tilt the scales well away from openness and accountability towards a security state".

Opposition to bill

Condemnation of this provision, contained in clause 1 (4), has been a refrain in four days of hearings that showed opposition to the bill remained undimmed, and raised new concerns about its potential consequences.

Chief among these was Public Protector Thuli Madonsela's warning that her work would be severely hampered by the bill because it afforded chapter nine institutions no special rights to information.

On Thursday, the Nelson Mandela Foundation told MPs PAIA was the Act that defined what information the state could withhold, and the bill's attempt to usurp the prior Act would be struck down by the Constitutional Court.

On Friday, the Catholic Bishops Conference echoed this concern, saying PAIA was constitutionally mandated and overturning it would be in opposition to the Constitution.

"Delete clause 1 (4). It will be a de facto amendment," researcher Mike Pothier said.

The R2K, born in opposition to the contentious bill, warned that it also fell foul of the Constitution by placing a reverse onus on whistleblowers who disclosed state secrets to expose corruption to prove that they were not committing a crime.

In terms of the bill, anybody who discloses classified information is guilty of a crime punishable by five years in jail, with the penalty rising to 25 years in the case of top secret information.

Hunter said the way in which it gave whistleblowers a "little figleaf of protection" through the Protected Disclosures Act would oblige them to prove that they had not committed a crime, rather than obliging the state to prove that they had.

"It will require the accused to prove that they qualify for that defence, rather than obligating the prosecution to prove the defence. This is not constitutional."

Public interest defence

The R2K reiterated its call, echoed by veteran rights lawyer George Bizos and Cosatu this week, for the bill to include a public interest defence to protect all those who risked jail to reveal secret information where it served the public good.

"For as long as the bill will expose ordinary members of the public to prosecution for the possession and disclosure of classified information, the only true remedy remains a public interest defence," it argued.

Echoing Cosatu general secretary Zwelinzima Vavi's view, it warned that the powers given to intelligence officials to classify any aspect of their investigations or functions, would make the security apparatus unaccountable to the public and have a devastating impact on democracy.

"The veil of secrecy is stretched to the max."

In his earlier presentation, Vavi said this clause raised the spectre of a return to a police state, and vowed that Cosatu would be the first to challenge the legislation in the Constitutional Court if it were adopted in its current form.

Opposition parties, activists, and media houses have issued the same threat, leading the Catholic Bishops' Conference to remark that "all and sundry are willing to take this to court".

Pothier urged MPs or President Jacob Zuma to spare the government the embarrassment of a successful legal challenge and use sections 79 or 80 of the Constitution to refer the bill to court to have its provisions tested.

The same call came from Bizos - appearing for the Legal Resources Centre - who asked MPs to place the legislation in the hands of judges after several redrafts failed to remedy its flaws.

The bill was passed by the National Assembly late last year. The National Council of Provinces, which held this week's hearings, must report back to the legislature on the bill by May 17.

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