South Africa

ANC backtracks on key clauses, but the Secrecy Bill battle is far from won

By Sipho Hlongwane 30 August 2012

After a series of closed-door meetings between parliamentarians, the African National Congress has agreed to amend two contested provisions of the Protection of State Information Bill. These don’t actually represent amendments to the bill, and could still be removed once the draft bill is before the National Assembly once again. By SIPHO HLONGWANE.

On Wednesday, as the ad hoc committee of the National Council of Provinces (NCOP) that is dealing with the Protection of State Information Bill (POIB) met, the ruling ANC agreed to remove two provisions that have been a sore point for as long as the bill has been around. 

The ANC promised to remove a clause that would make the POIB trump the Promotion of Access to Information Bill and a provision that gave higher sentences for revealing information classified by the State Security Agency.

One of the loudest critics of the bill has been Zwelinzima Vavi, the general secretary of the Congress of South African Trade Unions (Cosatu), who said the iteration that passed before the National Assembly last year would return South Africa back into the police state we left in 1994.

“You have to be concerned that the scope of the Bill is extended way beyond what is necessary … it takes a huge swipe at everything that moves,” he said in March when the NCOP held public hearings on the bill. “Cosatu’s biggest fear was the Bill might inadvertently draw us closer to a threat of entrenching a security state. Back to where we come from– the police state. Everything marked confidential and everybody seeing something marked confidential suddenly fearing 15- to 25-year imprisonment.” 

Vavi was especially unhappy about a clause that allowed the State Security minister to confer the power to classify any piece of information to any state entity (which could have included entities such as the Johannesburg Zoo) and a clause which banned the publication of anything classified by the State Security Agency.

“You cannot give the minister a blanket right. What we fear is that if you give such a blanket right you might end up with the lease agreements between the police and the various agencies being classified. That is very, very dangerous,” he said.

The punishment for publishing a classified piece of information was up to 15 years in prison. Both clauses have been watered down or removed entirely.

Right2Know National Coordinator Murray Hunter said an important concession was removing the right to classify from municipalities altogether. The State Security minister can now not confer that right down to that level of government. 

Hunter said his organisation, set up to fight against what it dubbed the “secrecy bill” was generally happy with the concessions. 

“State Security had extra protection of the information that it classified. That clause has now been cancelled which means that this department has to act like the rest of the government,” he said.

The multi-party meetings among the ANC and various opposition parties are happening behind closed doors. They came after the bill was rammed through the National Assembly by the ruling party before being passed on to the NCOP.

Hunter said the secret nature of the meetings was a cause for concern. “There is no paper trail, so until we are actually confronted with a draft bill we have no idea how the clauses are being drafted,” he said.

Alf Lees, a member of the NCOP for the Democratic Alliance and a member of the POIB ad hoc committee, said the reason deliberations on the POIB have gone behind closed doors was to see if a meeting of minds couldn’t happen between the ANC and opposition party members. 

“The process is very unusual,” he said. “But the concessions by the ANC are a result of these (closed-door) meetings.”

He said there were still reservations about the bill and that secret meetings will continue, perhaps as soon as next Tuesday. “We hope to have a new bill before the council of provinces by 11 September,” Lees said.

According to Lees, once the bill has been voted upon by the NCOP, it goes back to the National Assembly, which will in all likelihood put it before another ad hoc committee, which can either remove all the amendments, pass some of them or leave the bill intact.

“They can do whatever they choose, but we are optimistic that once the bill passes through the NCOP the National Assembly will accept it. They would have to provide extraordinary justification for changing it again.”

According to the Right2Know campaign, the public interest in the bill is still too limited. 

“You should be allowed to reveal classified information if you can show that it’s something the public should know (“in the public interest”). But the current ANC proposal for a limited public interest defence only protects you if you can show that the disclosure “reveals criminal activity”. This means vital information about the abuse of power, tender sleaze or other wrongdoing will remain under wraps.

A statement posted on Right2Know’s website said, “And there are serious loopholes: As the defence does not apply to widely enough, a whistleblower, journalist or activist may still be prosecuted under the ‘espionage’, ‘receiving state information unlawfully’ or ‘hostile activity’ clauses (36-38), or if the information was classified by the State Security Agency (clause 49),”.

There are also concerns about the vagueness of the espionage limitation, the harshness of the sentences and the ease in which information can be classified, without some oversight mechanism provided in that process. The battle continues. DM

Read more:

  • “ANC backtracks on key Info Bill clauses,” in Mail & Guardian 
  • “Secrecy Bill breakthrough as ANC says yes to major changes,” in Mail & Guardian 
  • “Bleak is the new black as MPs say yes to Secrecy Bill,” in Free African Media 

Photo by Reuters


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