Protector rips into info bill

2012-03-10 00:00

CAPE TOWN — Public Protector Thuli Madonsela, the Nelson Mandela Foundation’s archives, veteran human rights lawyer George Bizos and all South African universities have sent written protests to Parliament against the so-called secrecy bill.

The 261 submissions to the National Council of Provinces’ ad hoc committee on the Protection of State Information Bill fill more than 1 000 pages bound in three volumes.

The objections, typed and handwritten, came from farm workers and students, unions and pensioners, academics and squatters.

Madonsela’s closely argued 28-page submission thoroughly weighs the bill and illuminates objections with reference to legislation and legal arguments, making it clear that despite the ANC’s majority in Parliament, it will be a battle to promulgate.

This is because Parliament is constitutionally obliged to support the work of the Chapter Nine institutions, of which the Public Protector is one.

Madonsela writes that her primary concern is the unintended consequence of reducing the space the public protector and other such institutions enjoy under the constitutional protection of the law.

She points out that the right of freedom of speech and of access to information are threatened.

“Without the freedom to share information the authorities can control the flow of information, hide damaging information and manipulate the publication of positive news.

“There is a general consensus that misuse of resources and state power flourish in such circumstances,” Madonsela writes.

She says the bill makes it illegal, and punishable by five years’ imprisionment, to possess and not hand over to the police information that has been mistakenly classified as secret. It would also be illegal even if the classification concealed corrupt or authoritarian behaviour by the security forces, or maladministration by the police.

“To expect that the public protector would hand over such material to the police, pending an application for declassification, would seriously undermine the position of the public protector as a constitutional institution and its ability to receive protected disclosures in terms of the law.”

She points out that only state officials may apply for declassification, and there is no time limit on the process. She shoots down the ANC assertion that a public interest defence does not exist in other such laws internationally, by providing several examples of just such provisions.

Other Chapter Nine institutions agree that the provisions would seriously impact upon their mandates.

Higher Education South Africa submits on behalf of universities that the law would curtail research, while the Law Society of South Africa says it puts all information in the hands of the minister of state security, and puts national interests ahead of public interest. It asserts that without the inclusion of a public interest defence, the bill is unconstitutional.

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