Secrecy bill concessions fail to protect basic freedoms

The following article was published online by Sowetan Live

Parliament resumes its deliberations on the Protection of Information Bill today, with pressure on the ruling party to go beyond concessions promised last month when it came under fire from Cosatu.

During the parliamentary recess, warnings were issued from several quarters that the climb-down did not defuse a fundamental threat to freedom of information and expression in the draft legislation.

Among the critics was Nadine Gordimer, who said hard-won concessions “are to be understood for what they are: token moves to silence the rejection of the bill”.

Like the Nobel literature laureate, academics and activists argue that the legislation was conceived to give the state wide powers of secrecy and cannot be wrested from its origins by lopping off offending clauses.

The ANC last month agreed to restrict the power to classify information to the state security bodies, a dramatic reduction in scope as the bill had previously sought to allow some 1000 organs of state from ministries to public museums to keep top-secret files.

Murray Hunter, the coordinator of the Right2Know campaign, said he would now press lawmakers to restrict the instances where intelligence officials could classify information.

“It is better, but it is not great,” he said, adding that the bill was essentially about expanding the power of government’s security cluster. As it stood, the state could still draw a veil over any particular issue by proclaiming it a “security matter”, with severe implications for the rights of not just the media, but all citizens.

The group, which has sought to spread opposition to the bill from the elite to the poor communities, would rather remaining problems be resolved by MPs but if this failed it would launch a court challenge, he said.

It would also push for a re-wording of the wide definition of national security as cause for classification that currently includes South Africans’ “resolve to live in harmony” and has been ridiculed by legal expert Pierre de Vos as “things any Miss World contestant would approve of”.

De Vos had deemed the bill clearly unconstitutional.

Wits law professor Iain Currie said the bill’s chances of passing constitutional muster were about 50-50 after the concessions, which included scrapping mandatory jail sentences for possessing and passing on classified information.

Unlike the political opposition, he believes that a complete re-draft aimed only at securing defence secrets was needed instead of the “emergency surgery” being done in the legislature.

“It is not necessarily going to result in workable legislation,” Currie said. “The bill was designed in a different way and a far better way to redesign it would be to start off with legislation aimed at classifying official state secrets.”

Currie said an agreement by ruling party lawmakers to remove clauses on the protection of valuable information from the bill was welcome because it did not belong in conventional legislation on state secrets. But it had created a gap on how to safeguard information in state hands, like home affairs records, and this should be dealt with in separate legislation.

Currie and Wits colleagues had argued in a discussion paper that a major remaining sticking point on the bill – the absence of a public interest defence – could be resolved by introducing a harm test.

Source: Sowetan Live