Cape Town - Media Monitoring Africa is deeply concerned about the ANC considering crucial changes to the protection of state information bill, MMA director William Bird said on Wednesday.
The proposed changes would not only certainly guarantee a constitutional challenge, but also see South Africa seeking to pass legislation violating the country's African Union treaty obligations, as well as national legislation, he said in a statement.
South Africa's Promotion of Access to Information Act (Paia) was lauded for its commitment to openness and transparency. It also demonstrated South Africa's commitment to open government, and was an example of best international practice.
Paia was constitutionally mandated to give effect to section 32 of the Constitution - the right of access to information. Section 32 specifically protects the right to information as well as the legitimate state interests requiring non-disclosure.
Section five of Paia specifically provides that Paia applies to the exclusion of any provision of other legislation that prohibits disclosure of a record of a public body.
The ANC attempt to make the bill take precedence over Paia was illogical, would lead to substantial practical challenges and confusion in the law, and was, in any event, unconstitutional, Bird said.
"Trumping Paia would not only be a violation of South Africa's own Constitution, but would also show utter disregard for our continental treaties and obligations," he said.
At Tuesday's meeting of the National Council of Provinces committee dealing with the bill, the ANC agreed to some of State Security Minister Siyabonga Cwele's hawkish proposals on the legislation.
Cwele notably appeared to have persuaded the ruling party to re-introduce a maximum five-year prison sentence for the disclosure of classified information, and to re-introduce a clause that would have the new law trump any other legislation dealing with such information.
Without explicitly naming the Paia, the new official secrets act would therefore trump it - as Cwele had asked for, and commentators had cautioned this could render the bill unconstitutional.
African National Congress MP Sam Mozisiwe indicated the party would water down the protection afforded to whistleblowers and the media in section 43, more or less along the lines proposed by the minister a fortnight ago.
But the party would not bow to Cwele's argument that the threshold for liability be lowered by re-inserting the term "ought reasonably to have known" in the offences clauses in the contentious law.
"We have looked into that and unfortunately for now we are unable to agree with the department on that," Mozisiwe said.
The Democratic Alliance and Congress of the People said they were disappointed with the ANC's decisions, especially to limit the protection given to whistleblowers under clause 43.
The opposition, rights groups and the ANC's alliance partner, the Congress of SA Trade Unions, had all argued in vain for a public interest principle to be written into the bill as a legal defence for those charged with revealing state secrets.
But the ANC had always ruled it out, with Cwele saying it would amount to tearing up the bill before it became law.
The minister had been widely criticised for putting his views to the committee last month, with opposition parties saying he was flouting the separation of powers.