“National security” should be defined as narrowly as possible and a clear public interest defence must be included in the Protection of Information Bill, also known as the “Secrecy Bill”.
The ANC must accept this if it is to find accommodation with the opposition and meet the June 24 deadline for the parliamentary ad hoc committee processing the Bill to complete its work. And there will be spin-offs: transparency in public life will be maintained and democracy deepened and the Constitutional Court battle threatened by civil society organisations will be averted.
The committee’s work has been painfully slow. Only two of 51 clauses have been finalised and with municipal elections in the way of further work the next meeting will take place only on May 24.
While the ANC has made several concessions, there are four main sticking points between submissions from opposition parties and civil society on the one hand and the ANC on the other.
The concessions, or progress, so far include that the broad concept of “national interest” has been tapered down to the more restrictive “national security”, that the Bill no longer provides for commercial secrecy and that whistle-blower protection for state employees will be granted.
But there is still no public interest defence. The ANC has argued that the public interest override provided for in the Promotion of Access to Information Act (Paia) is sufficient, but the latter is wholly lacking: it is possible for the state to stonewall for months, and even years, when faced with a sensitive Paia request and Paia’s override is of no use if you do not have enough details about the information you are after to convince a court that its release will serve the public. And, in any case, “public interest override” and “public interest defence” are two different things — the latter is essential if journalists or citizens stumble on information that clearly needs to be exposed to prevent a serious ill.
There are two other sticking points that opposition parties also want tackled. These are the issues of “public domain” and “minimum sentences”. The African Christian Democratic Party’s Steve Swart believes there should be no minimum sentences at all for being in illegal possession of a classified document.
And if there is a dispute over whether a document should be classified, the parties argue it should be referred to an independent appeals body, which must then apply a harms test. For example, how harmful is it to “national security” for the public to find out what is contained in the Ministerial Handbook, which is currently classified? However, it has already been published online so it should not be restricted again.
The ANC would be wise to heed opposition parties’ and civil society’s warnings about the limitations the present Secrecy Bill imposes and to adhere to its own original principles of freedom, openness and transparency, in the interests of democracy.
“Members of the committee are very clear on where they stand. I see no reason why the Bill cannot be finalised by the specified time,” says ANC member Cecil Burgess, chair of the ad hoc committee processing the Bill.
Burgess said that when a Bill is introduced to Parliament for processing it is not always possible to put an exact time frame to when it will be finalised. He said during the 2010 Fifa World Cup the committee had been unable to sit and the time was spent on receiving presentations necessary to assist committee members to make informed decisions.
“Therefore, save for the World Cup period and a period where Parliament was preparing a resolution to allow for the ad hoc committee to continue its work and report by June 24, there is no delay in the processing that warrants any special concern.”
Idasa researcher and Right2Know national working group member Sithembile Mbete has been attending committee sessions and says that at the ad hoc committee’s last meeting in April it reached only clause three without finalising clause one, the definition of national security.
“The next meeting will take place only on May 24, so I don’t see how this Bill is going to be enacted soon,” Mbete said. She explained recent developments in the committee: at the ANC component’s suggestion, each party stated its position in writing, following which the committee started its clause-by-clause deliberations. Progress on these discussions was slow and the committee has only two finalised clauses to show so far.
“They are running out of time and it looks unlikely they will meet the deadline,” Mbete said.
Glenda Daniels is advocacy co-ordinator at the M&G Centre for Investigative Journalism and serves on the national working group of the Right2Know campaign