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.

  • Mark - 2012-03-30 19:47

    "Security State". Well yes, but perhaps African Kleptocracy would be closer to the objective.

      Tony - 2012-03-31 04:17

      Idocracy `or kleptocracy? Unfortunately both fit, and these f@rts are trying to cover both up with this law. These clowns are going to do what they want anyway ... Do you think they give a hoot what anyone says?? In their minds, the whites are racist colonial blah blah scum, and the blacks they treat worse than under apartheid (by their own admission mind you) so the Cadres do as they please. This comment applies to inter alia, the toll roads, place name changes, Zuma case, Arms deal, 100 year bash expenditure, WC expenditure,

  • Morne - 2012-03-30 19:49

    We want a country that is open an honest! Any body who is guilty of any crime should be made know off!

  • Gregory - 2012-03-30 19:52

    It's a obvious ploy to hide nepotism, fraud and corruption. No one wants it except for arms deal Zuma and his merry band of expensive liquor guzzling bandits.

      alansmartSnr - 2012-03-31 00:41

      Me thinks this is a desperate attempt by Zuma and his coherts to prevent the DA from opening the can of worms which saved him and others from corruption charges which were imminent just before he became president. forunately I dont see him getting a second term anyhow.

  • Tsietsi - 2012-03-30 19:59

    If those MPs didn't understand Murray Hunter, then really, our parliamentary house is occupied by fools, because his presentation was so clear it needs no interpretation, or call it party loyalty which overrides conscience.

      Scouter - 2012-03-30 22:25

      That is a very erudite summary Tsietsi - thank you.

      Tsietsi - 2012-03-30 22:32


  • Johnnie - 2012-03-30 21:41

    Any person in his right mind should be very glad to have a whistleblower in their midst, so that you can be sure there would be no corruption.I do not understand why a government, especially ours, should be so scared of people coming out with the truth. Hiding the truth is a sign of a very guilty conscience - what has the Government got to hide, or who are they covering up.

  • Brad.Kopping - 2012-03-30 21:55

    Their still going to vote ANC...

  • komorison - 2012-03-30 22:12

    The very word 'secrecy' is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths, and to secret proceedings. John F. Kennedy

      Scouter - 2012-03-30 22:30

      He certainly held on to a few secrets himself - the Kennedy clan still has much to answer for, starting with Joe.

  • champ.bopape - 2012-03-31 11:30

    Is this government FOR the people BY the people? If this question is correctly answered, then the Republic of South Africa is NOT a democratic state!!!

      Themba - 2012-03-31 11:38

      No, This government is FOR the ANC crooks and their friends and families BY the ANC crooks and their friends and families

  • komorison - 2012-03-31 14:27

    Absolutely Scouter. The quote however is relevant, we let this one go, secrecy bill, we'll end up like the US on it's way to becoming a closed society. The NDAA bill e.g.

  • Nikki Bodenstein - 2012-04-01 09:34

    So typical of the ANC, trying anything to hide their true nature from their people. Wake up folks, the ANC isn't interested in us or bettering our country. They're only in it for themselves. The whole lot of them are corrupt and incompetent!

  • i.see.a.cupcake - 2012-04-02 11:44

    i still don't understand why we need to keep secrets. we are not at war, so the only thing i can think of is to cover up a lie.

  • Noory - 2012-05-03 12:43

    why worrry black people dont carrre as long as thy belive the whites isthere anemy thy go whith what ever the ANC say not knowing thy are lib and ownend

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