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Info bill unconstitutional - George Bizos

2012-03-12 22:42

Cape Town - Veteran human rights lawyer George Bizos argues in a submission to Parliament that the protection of state information bill is unconstitutional on several counts.

"The current draft of the bill, as it stands, runs contrary to and indeed threatens many of the fundamental values and principles enshrined in the Constitution," he writes.

Bizos, from the Legal Resources Centre's constitutional litigation unit, prepared the submission on behalf of human rights organisation Passop.

It is one of 293 written presentations sent to the National Council of Provinces' ad hoc committee processing the bill after it was passed by the National Assembly last year amid a public outcry.

Flaws

Nelson Mandela's former defence lawyer enumerates seven flaws in the bill, starting with the absence of a public interest defence.

"We view a public interest defence as imperative. Such a defence would exempt from prosecution certain individuals in limited and appropriate circumstances where the disclosure has been made in public interest."

In Bizos's view, the bill would undermine the provisions of the Promotion of Access to Information Act (PAIA) of 2000 and its status as the supreme law giving effect to section 32 of the Constitution, in which citizens' right to access to information held by the state is enshrined.

PAIA makes disclosure in the public interest mandatory in cases where the information would reveal the commission of a crime, or the existence of imminent public safety risk or environmental risk.

Section five of PAIA also states that it applies to the exclusion of any act that restricts disclosure or is materially inconsistent with its provisions.

Trumps any other law

Yet, the protection of state information bill in section 1(4) explicitly states that "despite" section five of PAIA, it trumps any other law relating to classified information.

Writes Bizos: "Any proposed legislation that seeks to displace the clear provisions of PAIA also violates section 32 of the Constitution and is thus unconstitutional.

"The bill's attempt to trump PAIA, a constitutionally-mandated statute, is a further indication of the bill's overall unconstitutionality."

He notes that those who defend the absence of a public interest defence have argued that such a clause was unnecessary because the bill criminalises wrongful classification.

The argument is wrong, Bizos says, because the draft law does not allow those prosecuted for disclosing state information to argue in defence that it was wrongly classified to begin with.

"This further ignores the practical reality that improperly classified information will be difficult, if not impossible, to detect and challenge without the efforts of investigative journalists and whistleblowers who will be hamstrung in their ability to bring these illegal classifications to light if they fear lengthy jail terms."

Criminalise disclosure


Constitutional law expert Pierre de Vos said he agreed with Bizos because the bill was drafted in such a manner as to criminalise disclosure of classified information, regardless of whether the classification was lawful.

Bizos also faults the bill for allowing the minister of state security to confer the power to classify information on other ministers.

This usurps the principle of accountability enshrined in section one of the Constitution because it removes the oversight of a particular function from Parliament, and places it with the delegating minister.

He goes on to say that the legislation runs counter to criminal law by basing liability not on the accused's intention, but on the far lower standard of proof that he or she "ought to have known" they were disclosing a secret.

Bizos also says that imposing prison sentences of up to 25 years for the offences in the bill is excessive and that the Classification Review Panel it seeks to establish will not be seen as independent or impartial.

Suspicion of political bias

This was because a member of the panel could be removed by a majority vote in the National Assembly, raising a reasonable suspicion of political bias.

Finally, he says the bill flouts the constitutionally-mandated Promotion of Just Administration Act by potentially ousting the jurisdiction of the High Court to review classification - which is an administrative act.

The submissions include a 20-page letter from Public Protector Thuli Madonsela, who warns that it jeopardises freedom of expression and her ability to do her job by preventing journalists and whistleblowers from reporting abuses.

Cosatu, in its contribution, calls for the inclusion of a public interest defence and foresees that the bill will "worryingly" have the effect of "entrenching authority through a security state".

Cosatu has, along with rights groups, media houses and opposition parties, threatened to challenge the bill in the Constitutional Court if it is signed into law in its current form.

The ad hoc committee will meet on Wednesday to schedule further hearings on the bill.

Comments
  • Neil - 2012-03-12 23:02

    By George, he's got it. THANK YOU Mr Bizos!!!!!

      amanda.victor2 - 2012-03-13 00:09

      Doesn't matter of course. The ANC have decided to gag the media so that their 'second transition' can occur i.e. full on communism. The courts will be next, then AA will exclude all minorities from the workforce and then people will start losing their land. This is what the second transition is all about and the media need to be gagged for it to happen unopposed.

      John - 2012-03-13 03:52

      @Amanda Just wait a bit to see. Media will be castrated completely. Herewith is a nice press release template for sport event: Bafana Bafana will never "LOSE" game again. They will "YIELD" to other teams........ Then is a complete "second transition".

      Max - 2012-03-13 05:17

      @Amanda, you are a very perceptive person, well said.

  • Ian - 2012-03-12 23:06

    Of course it is unconstitutional! The most corrupt government in the world will do anything to keep people quiet!

      Joggie - 2012-03-12 23:11

      Cool... So the MAJORITY of the ANC is Criminals? Very nice work... We can now even proof it legally...

      Ben - 2012-03-13 04:54

      Yes and they knew it. Now they want to change the constitution to process this bill. Then they can proceed with their other illegal activities in peace. The government against the people.

      Kevin - 2012-03-13 08:58

      It is probably not the most corrupt government in the world. Try living in Zimbabwe or the DRC or Kenya. But you are right about one thing and that is the Governments desire to keep corruption quiet and out of the press. A free press is a BIG problem for the Goverment as it highlights corruption and stupidity.

      colin.dovey - 2012-03-13 09:27

      @Kevin - Which Government holds the dubious honour of being "The most corrupt" is an elusive concept. If corruption however, is measured in terms of money "stolen" from the fiscus, and by inference, the people, then SA has BY FAR the largest economy in Africa....except that Nigeria is now overtaking us. Neither Kenya, the DRC or Zimbabwe can match that level......but we "aint seen nuttin yet" because when our friend JM gets into nationalising mining, corruption will be rampant. Very sad.....Alan Paton...your words always HAD to be prophetic: "Cry my BELOVED County"

  • Getafix - 2012-03-12 23:07

    Vote this flinging Dirt under the carpet trash out.

  • bernpm - 2012-03-12 23:14

    welcome to the beginning of some sanity and reason in this debate! Hope the boys & girls in Parliament will get the message.

  • Mantsho - 2012-03-12 23:32

    l dont think that majority of South African citezen would love to see their country go down like the rest of Africa, this is what l am waiting to see if thi bill become the law in our country, because as long as we are still stucked with Zuma and his cronies we dont have a choice, this thing is coming .

  • brainbowgold - 2012-03-12 23:33

    George Bizos is a living legend. This statement is evidence that the ANC is on the wrong path and confirms that eveything they do seems to be in contradiction with the intentions of their founders. This must be the strongest indication that the organisation is busy dying.

      Peter - 2012-03-13 09:03

      Although I lik your sentiment and agree whole-heartedly that they puppets are on the wrong path, I would be careful to place too much faithin the fact that it is Bizos doing the arguing here. He is now, and always has been, a business man doing this type of thing for the money, publicity and esteem.

  • TaniaSandraSteyn - 2012-03-13 00:04

    Thank you, George. You credentials are impeccable, and you reasoning sound. Now to find the mechanism to explain this to the average South African? Therein lies the problem.

  • TaniaSandraSteyn - 2012-03-13 00:08

    My question to the whole of SA: Do your read books? Do you read your daily newspaper? If you don't, what do you base you opinion on? Hearsay? We are apathetic and naive. That is why the Chinese and Nigerians are running rings around us. Start thinking for yourself. I know it is a leacy of Apartheid, but gain the knowledge and experience and work your way though this mess. We have very little time.

      TaniaSandraSteyn - 2012-03-13 00:08

      "legacy"

      Tony - 2012-03-13 05:33

      Judging by the number of thumbs up and down, it seems ,at this point anyway, that 40% of South Africans read and are aware that we are being screwed over. Worryingly, 60% see to think that all is good in this ANC controlled country! Ah well. Sheep and their ANC shepards ....

      maseratifittipaldi - 2012-03-13 06:23

      "Start thinking for yourself". This is the essence of the South African problem, Tania. These matters should be communicated, analysed and debated on a much wider and deeper forum. Clinically and objectively. Our democracy is ineffective because our "leaders" are voted into position on populism rather than ability. On emotion rather than intellect. The "leaders" themselves are motivated by personal wealth rather than servitude. This "power" cocktail is extremely toxic to South Africa. I maintain that the only way to freedom and democracy in South Africa, is to depoliticize the management of our country by at least 90% and to scrap all political parties.(These will always put their own interests above that of the country). The electoral system must be overhauled in order to balance power on an intellectual/geographical/functional level, in the interests of South Africa and all its people. Not in the interests of a particular party. Put South Africa first. Thank you for standing up for Freedom, George.

      Mark - 2012-03-13 07:19

      In answer to your multiple questions - yes, yes, no. Many of us are aware, awake and fully realize where the country is going, and with whom at the helm but too many I think have been browbeaten into submission or into feeling guilty. The rest of us however are strong, ready for the fight when it comes and prepared for the long haul because that's what it's going to be. Right is might and regardless of the past, this is our country too.

      TaniaSandraSteyn - 2012-03-13 23:36

      No worries, Tony. I am a woman living in a farming Community. I am pretty used to having my opinions vilified. It's tough going against the grain, but the truth will out - even when spoken by the village idiot. Which is the category reserved for blondes with blue eyes, and people dribbling on their chests. I can take it.

  • Donovan-John - 2012-03-13 00:10

    Go George ... Nice to see that you are not an ANC loyalist, rather that you are an advocate for a better and freer democracy in South Africa!

  • mary.kircher - 2012-03-13 00:33

    Thank God for the voice of reason.

  • burrowscraig - 2012-03-13 05:14

    anybody with 2 brain cells to rub together have always know that it is unconstitional. but why would that be a reason to not pass the bill. its not like the constitution really means anything to the ANC. its never been about the people. always just the few that are on the take while the majority still suffer. the struggle isn't over, its just the party thats changed.

  • sophia.barnes3 - 2012-03-13 05:27

    If I could have a conversation with 5 people as a last reserve, George Bizos would be one of them. A consistently moral man in my view, no matter who the oppressor might be.

  • brionyl.french - 2012-03-13 05:32

    We all know this, now tell the ANC

  • Anthony - 2012-03-13 06:55

    Whoever is trying to pass a bill that the citizens can be above the law, is a criminal and he should be caged. Bizos says it as it is, and the country has to listen. We must not allow the injustices of politicians imposing on the population. It has to be "We the people" and not "we the politicians". Whoever is stealing must be brought to court as high as he can be. That simple. Bizos is right again.

  • pws69 - 2012-03-13 07:04

    The fact remains that 65% of the population are so ignorant that they will support this, and then when it klaps them, it will be "What happened?" They will wake up far too late. Once a law is in it is almost impossible to remove it without a change of government. But the REASON for the law is patently clear. We have had more articles in one week of ANC corruption that the DA have had leveled against them in their entire existence, let alone proven.

      Peter - 2012-03-13 09:07

      Actually ... it won't be "What happened?" ... rather it will be "the White's caused this through Apartheid!". You know it ... I know it ... but it is not PC to say, now is it?

  • Shaun Robinson - 2012-03-13 07:10

    So we have to RICA so they can know what we do and say but we can not know what they do and say yet we elect them??? Mmmm, a bit hypocritical it seems does it not?

  • Mark - 2012-03-13 07:11

    Thank you George Bizos, a man of principle willing to stand by his principles. Pity we don't have more like you, or even another like you in the ruling party.

  • jody.beggs - 2012-03-13 07:12

    Damn the man.

      Peter - 2012-03-13 09:08

      Go Begg elsewhere kid.

      Ricki - 2012-03-13 10:24

      I presume by man you mean the metaphorical "man" in charge. In which case you say damn the ANC, which would probably be for the best for our great country.

      Ben - 2012-03-13 10:58

      Jody, please, this is not what you mean. Explain yourself. Normally you have something to say before this phrase.

  • Trevor - 2012-03-13 07:13

    one HUGE problem with this, the ANC has publically annouced, it seeks to CHANGE the constitution under the guise of improving on the original legislation that was drafted after 1994 which no longer "suits" the current circumstances, changes that are more "suited" to the current times. In short, Jacob Zuma and his cronies want a DICTATORSHIP in SA like EVERY OTHER AFRICAN STATE...they want to be sure that their corruption is not made public and only positive statement are made about government, in short, the ANC IS THE NEW NATIONAL PARTY...and if you think I am out of line, just look at current reaction of the ANC to the media, current legislation, AA/BBEEE, conscription that is returning, Army BACK on the border, ANC personal propoganda "NEW AGE" Media and the list goes on...sorry but we going right back to the 80's, only difference is, the ANC are doing it ECONOMICALLY and very slowly where the NP did it over a matter of months.....if you STILL think I am crazy then, why the changes to the Constituation...why the Secrecy Bill......mmm...wake up

  • Jabulani Lucky Mokomane - 2012-03-13 07:18

    OK, George Bizos. We give thanx for your contribution. Hope that the ruling party will be enlightened in this regard.

  • Mark - 2012-03-13 07:28

    George Bizos has communicated in the clearest manner possible to our "rulers" why the judiciary must remain independent and why information must be available to all. Two of the basic tenets of democracy without which we'll be just another failed, one-party state. Time now for those in the ANC who believe in this democracy to stand up and be counted because you, and we, are running out of time.

  • Vuyolwethu Sanele Gqwaru - 2012-03-13 07:34

    Of course the bill is unconstitutional, it is just government's way of ensuring that all corruption goes unpunished, then all the money grabbing government officials can stuff their pockets with state money without fear of exposure in the media. \r\nIf anything, this bill is a step back for our democracy, after the 1994 elections, things were looking up for South Africa, we were a country that had overcome so many obstacles, we had a freedom of the press and many African countries actually looked up to us but now we are probably nothing more than a joke.\r\n\r\nPlease read my blog www.spanela.wordpress.com

      Susan - 2012-03-13 08:13

      Well said!

  • carolannbaptista - 2012-03-13 08:00

    Thank you Mr. Bizos - now maybe the ANC run government will listen.

  • carolannbaptista - 2012-03-13 08:01

    Thank you Mr. Bizos. Now the ANC run government might just listen to the rest of the comments/arguments delivered thus far.

  • Patrick - 2012-03-13 08:05

    George Bizos is to be commended for his stance which is noble indeed. However,he needs to be reminded that he was one of the ANC's staunchest supporters over a long period of time and now the baby he wet nursed has grown into a corrupt and self enriching organisation completely out of control.

  • michael.e.bowery - 2012-03-13 08:07

    George Bizos was for years the champion and legal guru for this ANC government's members. I wonder whether they will heed him now, or just continue on to the usual African governmental route to a one party State? A State, probably led by yet another life President.

  • Jason - 2012-03-13 08:10

    Well think all those who don't vote next time need to get out and vote...We can't have the ANC having the % of vote they have because they can do whatever they want... If they can legally change the Constitution because they have the votes what can we do.. Next election we need mobilize all those lazy people who can't make the effort to vote.

      Garth - 2012-03-13 09:37

      It matter not how many `lazy' thousands get out there and vote for other parties; what matters is how many thousands have seen the light and do NOT vote for the useless, worthless anc.

  • Susan - 2012-03-13 08:11

    Why would that stop them?

  • Tanya - 2012-03-13 08:24

    Well done George - SA thanks you!

  • Garth - 2012-03-13 08:26

    All the moral and ethical peoples of the world that support the useless, worthless anc, should, at this stage of the situation in South Africa, be waking up to the reality of their actions. All those hours of protest against the evils of apartheid have resulted in this ineptocracy. How disappointed you all must be . . ..

  • Shannon - 2012-03-13 08:33

    I am a second year law student and find this blatant fascism fascinating. Of course the ANC want to change the Constitution: then the info bill will no longer be unconstitutional. Of course Zuma has promised to reveal the outcome of the arms debacle: because by the time he's "ready" to do so, it will be out of line with the new info bill to release it. It makes for a sad state of affairs when your country is going down the crapper and there's nothing you can do about it.

  • Nkosana - 2012-03-13 09:14

    If the ANC does not see the light now, it never will in the future, imposing a piece of legislation that violates the fundamental right to freedom of speech is tantamount to promotion of cover ups of corruption.

  • Agedah Alex - 2012-03-13 10:23

    The ANC is just gradually going to turn S.A into another Nigeria,i wonder why South Africans despise Nigerians,while they begin to look alike everyday

  • Agedah Alex - 2012-03-13 10:23

    The ANC is just gradually going to turn S.A into another Nigeria,i wonder why South Africans despise Nigerians,while they begin to look alike everyday

  • mmoledis - 2012-03-13 10:39

    Let those people whom we voted into power not be our oppressors, let that bill be scrutinised properly and if not in line with the constitution and threatening democracy in this country then be scraped even before the nation can know about it we want freedom and not a puppet freedom a real on the one we voted for in 1994. If ministers and those in government do fraud, crime and corruption let the nation know and let them be prosecuted rather than government protecting them, otherwise this state will be a real banana and gravy train republic where people will fight for seats just to milk the state and not doing what voters have voted them in for. AWAY WITH DRACONIAN LAWS!

  • Hugh - 2012-03-13 11:51

    The word "Enshrined" is quite pertinent here. Imagine the US constitution signed by their great leaders being treated as a working document, or green paper?

  • Michael - 2012-03-14 22:49

    Nelson? Nelson who? He's turning in his grave and he's not even dead yet. I would pay big money to hear what Mandela has to say about his successors who are systematically defrauding every single SA citizen. our last 15 years of history is spectacularly despicable. Gravy train doesn't suffice, more like pigs at a feeding trough. The govt sickens me. The only difference between thugs and them, is that they're in power.

  • Glyn - 2012-03-14 23:05

    Vote DA! the answer my friends is blowing in your vote.

  • Glyn - 2012-03-14 23:11

    What does Michael Hulley say about this? I challenge Michael Hulley to Publicly state his opinion on this.

  • eugene.joshua - 2012-03-15 07:43

    Don't touch us on our Constitution!

  • Brian - 2012-03-17 15:02

    SOUTH AFRICA NEEDS JESUS WE DONT NEED ALL THIS .

  • mzijimmym - 2012-03-26 18:20

    I urge the ANC to heed the wise advice of Bizos and dump this secrecy bill.

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