Presentations from public meeting held on June 7
7 June 2011
The presentations from the speakers at the public meeting held on 7 June 2011 at the IDASA centre:
Imam Abdul Rashied Omar: How close is the POIB to meeting R2K’s freedom test?
The Secrecy Bill committee began clause-by-clause deliberations on 24 May. They are now about halfway through the Bill (clause 21) but, as a result of disagreements between different parties, they have flagged a number of clauses for further discussion at a later stage.This flagging of controversial clauses for further discussion is clearly a response to the public outcry over the apparent attempts to ram the Bill through by the 24 June deadline. However it also seems to be just a delaying tactic to take the heat off the committee by postponing the resolution of controversial clauses until there is less public scrutiny. The committee has asked the Chair, Cecil Burgess, to request a further deadline extension (most likely to August) to complete its deliberations. However even the August deadline is likely to be insufficient as there are many crucial issues that have yet to be discussed and the committee is far from meeting our seven point freedom test. Find below a summary of the committees progress so far in relation to R2K’s freedom test:
• The Bill should apply only to core state bodies in the security sector such as the police, defence and intelligence agencies.
• After deliberations on clause 3, which deals with the application of the Bill, this issue is still unresolved.
• The only change that has been made to the clause is to allow for the Minister of State Security to designate part of an organ of state to classify information. This amendment is supposed to free up the rest of the state organ to concentrate on its core functions, but does not address the problem of over a thousand institutions having classification powers.
• This issue has been flagged for further discussion.
• A. The Bill’s powers must be limited to strictly-defined national security matters and no more.
• The committee agreed to replace all references to “national interest” with “national security”, apparently narrowing the Bill.
• However the definition of “national security” begins “the resolve of South Africans as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life…” By this definition, “national security” could mean just about anything so the scope of the Bill could still be very broad.
• The committee Chair, Cecil Burgess, decided that the committee should only discuss the definitions (clause 1) when the rest of the deliberations on the Bill are completed so it is likely this issue will not be resolved until the end.
• Officials do not need to provide reasons for making information secret.
• The committee has agreed to include a harm test in the clause dealing with classification levels (clause 15). This states that information may only be classified if its disclosure could be expected to cause demonstrable harm.
• The implication of this test is that the classifying official would have to demonstrate through written justification what harm the disclosure of the information would cause.
• However the committee has not included explicit provision for the need to provide a written justification of classification decisions at the point of classification.
• Do not exempt intelligence agencies from public scrutiny.
• The Bill still provides the Ministry of State Security with extensive powers to shield its activities from public scrutiny
• The application of the Bill would extend to institutions that are meant to oversee the intelligence services including the Joint Standing Committee on Intelligence (which has many of its meetings behind closed doors already) and the Inspector General of Intelligence
• Do not apply penalties for unauthorised disclosure to society at large, only those responsible for keeping secrets.
• The committee has not reached the penalties clauses yet.
• However it has discussed clause 18, which makes the possession of classified information an offence. The opposition parties have proposed that this clause be deleted. The ANC refused.
• Do not criminalise whistleblowers and journalists; the Bill must protect those who release classified information if that information is in the public interest.
• The committee touched on the issue of the public interest defence in its discussion of clause 18. The ANC remains vehemently opposed to the inclusion of such a defence.
• Clause 18 has been flagged for further discussion.
• The previous concession (from November 2010) to amend clause 37 to protect whistleblowers has been left out of the current version of the Bill.
• An independent body appointed by Parliament, and not the Minister of State Security should be able to review decisions about what may be made secret.
• The ANC tabled a document proposing a classification review panel that would make up new clauses 21 and 22, which will be discussed in more detail at the next meeting
• The opposition has raised a few reservations about this proposal including the following:
• the panel would be appointed by the Minister of State Security and thus wouldn’t be fully independent
• the panel would report to the Joint Standing Committee on Intelligence which often has closed meetings therefore the panel wouldn’t really perform the role of a transparent oversight body
• the qualification requirements of the panel were vague
• Commercial information should be removed
• The committee agreed at the start of its clause-by-clause deliberations that all references to commercial information would be removed
• However sub-clause 21(2)(f) retained a reference to commercial interests by addressing to the protection of non-state entities from “financial loss”
• The committee agreed to remove this clause from the Bill so all provisions for the classification of commercial information appear to have been deleted.
Pierre de Vos: Talk on Protection of Information Bill
Few people in South Africa will argue with the contention that– in the most exceptional circumstances – the state has a duty to keep secrets. The identity of intelligence agents, details of troop movements or the whereabouts of our submarines during a time of war (one never knows when we might be attacked by the Lesotho navy), and even the private deliberations of the cabinet may arguably be kept secret to protect “the life of the nation”. In a democracy like ours it is therefore necessary – in very limited circumstances, to sanction state secrecy.
However, the South African Constitution unambiguously limits the situations in which the state should be allowed to keep secrets. This is because any form of secrecy infringes on the right to freedom of expression – including the right to the freedom of the press – as well as the right of access to any information held by the state. And as our Constitutional Court has emphasised, these rights lie at the very heart of our democracy. Secrecy – and the concomitant limits of freedom of expression and the media – therefore always pose a potential threat to the health of our democracy.
To read more see Pierre de Vos’ blog Constitutionally Speaking.
Pregs Govender: Power, Secrecy and Human Right
Download the article here.
