Minister of State Security response to public submissions on Protection of Information Bill

Meeting report

The Chairperson said that an incorrect perception had been raised in the media that the Bill would be passed as it was and some had asserted that it was already law. There was a process in Parliament which included, amongst other things, the consideration of the public submissions by the Committee. The Committee had not even begun to consider the Bill or the public submissions. The processes in Parliament should be respected and Members should be allowed to do their duties. The Minister’s presentation would not be completed today and there would be further presentations from him. The Committee did not intend for the meeting to go beyond 11:00 as some Members had to leave Parliament.

State Security Response to the Public Hearings on the Protection of Information Bill
The Minister of State Security, Mr Siyabonga Cwele, presented the response of the Ministry to submissions made during the public hearings. He said the Ministry had noted some of the submissions were opposed to any form of limitation to the right of access to information as provided for in the Constitution, the African Charter on Human and Peoples' Rights and the International Covenant of Human Rights. Some of the submissions had recognised that a degree of confidentiality and secrecy would be required in order to advance legitimate national security goals and that certain information might be exempt from disclosure by the state, despite the right of access to information.

Background to Protection of Information Bill
Since 1994, various Ministerial Intelligence Review Committees had focused on the way the intelligence services dispensation operated and sought to improve internal processes including the management of information. Importantly, the reviews noted the uneasy fit of the Protection of Information Act of 1982, the lack of a coherent system of protecting information, its classification and declassification, its review after a lapse of a given period and the granting of access to the general public for daily use, research, scientific enquiry and for advancing their rights, as provided for in the Constitution. The most notable recommendations from the Review Committees were that there should be secrecy legislation that would be compatible with the Promotion of Access to information Act, 2000 (PAIA) and the Constitution.

Reasons for Enactment of Bill
The Bill would decrease the four levels of classification to three. It would criminalise the abuse of the classification system for purposes of hiding corruption, maladministration, incompetence and inefficiency in the public service. The Bill would also seek to improve access to information through a coherent review and declassification system and create additional avenues for accessing classified information by providing a procedure for requesting such access. Counter-intelligence reports had continued to indicate that foreign intelligence services were hard at work formulating targets of information collection. Many countries had moved their embassies from other countries to South Africa. Some of these embassies increased their staff in order to increase their collection capacities. Some of the collection targets included profiles of senior government leaders, such as the President, the Deputy President, Ministers and Deputy Ministers and the leadership of the ruling and opposition parties. These efforts were to ensure that the evolution of polities and future plans of South Africa could be unduly influenced. Espionage continued to be real in our midst and South Africa could not afford to underestimate this threat.

Economic Competitiveness
The main focus of most intelligence services in the world, had shifted from traditional threats to new frontiers such as advancing the economic security interest of their countries. Intelligence services used any means necessary to obtain trade secrets of hostile and friendly countries, blunting the competitive edge of their rivals and competitors. South Africa had been a major producer of medical vaccines in the world, but due to the failure of the country to protect these vaccines, some of the country's capacity had been lost to rivals from whom we now buy the vaccines that we used to export. It had impacted negatively on food security and the farming community was a daily witness to these challenges.

Information Peddling: A clear and present danger
Information Peddlers generated documents alleging conspiracies, plots and coups based on snippets, inferences, innuendos, gossip and rumours. Since the inception of the new South Africa, information peddling had undermined democratic processes in South Africa and in neighbouring countries.

Alteration, Destruction and Loss of information in critical databases
The newspapers were full of many saddening stories about the experiences of South Africans whose personal information contained in critical state databases had been altered, lost or destroyed by public servants who sometimes collaborated with criminal syndicates. It was imperative that the state protect the information of its citizens.

Response to Concerns from Public Hearings
The Bill was clear in its quest to balance secrecy and openness and had provided principles that informed the protection and classification of information. It created checks and balances for the limitations that had been included in it. There were submissions on departmental policies and procedures for classifying information where it was argued that heads of organs of state should not classify categories of information in the interest of consistency and transparency. The Department of State Security was of the view that this would be a huge task and there was a need for each of the heads of organs of state to assume administrative responsibility as the buck stopped with them, administratively speaking. They should therefore shoulder this responsibility under the political guidance of their responsible Ministers.

A number of submissions called for the inclusion of a public interest override provision where commercial information was concerned. The definition of ‘commercial information’ could be removed; the same would apply for the definition of ‘national interest’. A better alignment with the Promotion of Access to Information Act would be sought. The Department was not in agreement with the submission for the removal of the appeal process from the Minister’s prerogative. It was critical that this power be retained by the Minister with the provision that he or she may be able to establish a board to advise in the consideration of appeals. In some submissions there were concerns that the penalties were too harsh, especially for unauthorised disclosure. The severity of the sentences was deliberate, as the penalties were proportionate to the damage the unauthorised disclosure would cause. In addition, these severe penalties would serve as a deterrent to unauthorised disclosure.

The Department welcomed the inclusion of the use of a public interest override to apply for access to classified information but not to use it as a defence to disclose information. The problem with a public interest defence was that once the information was published, and the courts found that disclosure was not in the public interest then there was no remedy or recourse. There was a need to narrow some of the definitions such as ‘commercial information’ and ‘national interest’ as they sought to define what information had to be protected from unauthorised disclosure. To this end the Department proposed that these be deleted. The Canadian approach of listing issues of concern to national security seemed to be advisable. This approach would ensure that the definition's reach was clear and limited. 

Discussion
Mr L Landers (ANC) commented that the oversight system in Parliament was derived very much from the Canadian model, the Minister’s reference to Canada in the presentation resonated very much with some of the Committee Members. Would this approach suffice in addressing the challenges posed by many of the submissions at the public hearings? Could the Minister elucidate on the protection of South Africa’s food security as contained in the document. The Committee welcomed the proposed removal of ‘national interest’ and ‘commercial information’. A serious concern was the delegated authority that was allowed in the Bill, this was a sticky issue.

The Minister replied that the Department still held the view that it would be the responsibility of the head of an organ of state to classify information, in line with the national guidelines. The intention was not to delegate this function to officials in the lower ranks. If there was to be any sort of delegation it would be assigned to the highest officials. The main responsibility however had to remain with the head of an organ of state. Any changes would be in the hands of the Committee. However, the danger was that if there were to be no delegation then this could lead to bureaucratic problems. Economic espionage was a reality but the Department conceded that the way it was addressed in the Bill could be too broad. The approach of the Department was that it would be removed and a clear and narrow approach would be drafted in order to protect what had to be protected. The concept of ‘national interest’ was new and interesting however it had become very difficult to define. There was no need to allow it to remain in the Bill if it was too wide or caused problems. It was the view of the Department that it should be removed and the Bill should focus on what had to be protected. The Canadian model would assist in narrowing the Bill’s focus on what had to be protected and was well worth considering. It was very important that the country had food security now and in the future. However in future there would be a lot of problems surrounding food and water security in South Africa. To address these future concerns, South Africa was engaged in a lot of research in order to ensure that food in the future would be drought resistant etc. South Africa was also trying to ensure that there were animal vaccines for this purpose as well. All this research and intellectual property was not properly protected. Former staff members at research facilities had approached private companies with the research data. South Africa was a world leader and had been selling animal vaccines. Presently, South Africa was importing animal vaccines. It was critical that research information was protected.

Ms D Smuts (DA) commented that the Bill introduced by the former Minister of Intelligence, Mr Ronnie Kasrils, was meant to legislate the status quo. It was a shock when it was reintroduced by Minister Cwele. The afore-mentioned status quo that the original Bill was trying to legislate, consisted of spying in areas where no intelligence services had a right to operate. “Secrecy” was spread like oil because the National Intelligence Agency (NIA) had been turned into the filing clerks of the nation. She found some of the examples and arguments in the presentation close to the grotesque. The Ministry was still in the grip of the political paranoia, which influenced intelligence after the former President Thabo Mbeki and his Cabinet in 2003 instructed that espionage would take place in respect of politics, political formations, parties and economic issues. The assertion in the presentation about foreign embassies spying on the President, Deputy President, opposition leaders and Cabinet Ministers indicated that the Department was still in the grip of political paranoia from the era of President Mbeki. The idea of spying on economic issues was dangerous because it could turn into a recipe for corruption.

The Chairperson interrupted and asked if there was a question for the Minister on his presentation.

Ms Smuts said there was and addressed the Minister saying there were no indications whether the entire section on commercial information was to be removed. Why, in accordance with the Bill, should intelligence officials be the ones to ascertain whether heads of organs of state were looking after valuable information? Why was the alteration, destruction and loss of information in the Department’s remit, it did not belong there. There was an Electronic Communications and Transactions Act that dealt with critical databases and created an offence for hacking. Intelligence services had created a very wide remit, this was unacceptable. The Department was of the view that there should not be a public interest override however the starting point was that South Africa had constitutionalised the right to access to information held by the state. The right to information had been given affect by PAIA; this Act prevailed over any other laws that the Department wanted to introduce. The Defence Force in its Defence Act observed PAIA….

The Chairperson again interrupted and asked if Ms Smuts had a question on the Minister’s presentation because it seemed as if the Minister was being lectured. The issue being raised on the Defence Force Act should be raised during Committee deliberations.

Ms Smuts continued that the public defence override should be allowed in the Bill.

The Minister replied that the submission was of the view that the information that had to be protected would be anchored in terms of PAIA. The Department conceded that PAIA was prescribed by the Constitution in terms of access to information. However the non-mandatory disclosure of certain information in accordance with PAIA had to be protected. On the issue of valuable information, it was not protected against disclosure. A uniform system had to be created to ensure that valuable information was protected. Valuable information could not be protected without prescribed provisions on how it could be protected. The Department was not clouded in political paranoia. It sought to gather intelligence on real threats to South Africa. There was no clause in the Bill that provided for intelligence officials to be involved in economic spying, the Bill only sought to protect South Africa. Where the presentation made reference to political leaders as targets of spies, it was referring to the policy-making capacity of the incumbents in political positions. Spies were targeting the policy makers of parties like the DA for example, so as to influence and distort them. The state did not want to allow the policies of political parties to be distorted by spies and information peddlers in this way. There were clear codes that governed the members of the intelligence community and each one was aware that it was illegal to get involved in internal political party meddling.

The Chairperson said that the Minister was responding to the submissions made during the public hearings. The Minister was present at the meeting in an advisory capacity only. The Committee may or may not accept the advice, however, the Minister was giving the advice in good faith. The Chairperson urged the Members to keep the temperature on normal.

Mr S Swart (ACDP) thanked the Minister for his advice to the Committee to remove ’national interest’ and ‘commercial interest’ in the Bill; this was a step in the right direction. The South African Human Rights Commission (SAHRC) had raised fundamental and grave concerns on the constitutionality of the Bill in its submission during the public hearings. Such concerns flew directly in the face of the view by the chief state law advisor. The SAHRC as part of its submission had submitted that ‘in excluding a public interest override the Bill falls foul of a number of basic human rights commitments. These included the right to know, access to information, the principle of openness and freedom of expression’. There was a long way still to go before the Bill could be harmonised with PAIA. In section 41 of PAIA there was a public defence override, surely this provided a lot of substance for a strong consideration of a public interest override. Was it justified to have minimum sentences in the Bill? Many of the submissions and the SAHRC stressed the need for an independent oversight body. There was also the legal principle that said that no one could be the judge in one’s own case, could you comment on this? Surely the SAHRC should play a bigger role in this Bill as it had experience where access to information was concerned.

The Minister replied that he was confused as to what role the SAHRC could play. They promoted human rights and it was unclear if Mr Swart was saying that it should play an administrative role. The Department had scrutinised the Bill and found that there was nothing unconstitutional about it. The provisions which appeared to be broad and vague had been removed as they were possibly unconstitutional. The Department had no qualms with a public interest override being a means of accessing classified information as opposed to disclosing it. The Canadian legal model also used a public defence override as a means of accessing classified information. The problem with a public override defence where classified information was being disclosed was that the damage would have already been done - as the classified information would have already been disclosed. Regarding the minimum sentences issue, if top secret information was disclosed that could bring the country to a standstill. Thus the punishment had to be proportionate to the scale of the crime. This was why the Bill made provision for guidance on the classification system. Some of the crimes were very serious hence the minimum sentences. There were however provisions in the Bill that allowed for the discretion of judges when they applied sentences.

Mr D Maynier (DA) said that earlier the Minister said he had heard the views of the public but the question was whether he had listened, he thought not.

The Chairperson interrupted and requested that Mr Maynier should not attack the integrity of the Minister.

Mr Maynier asked if the Minister was still of the view that there was no clause in the Bill that limited the freedom of the press despite all the media submissions and academic opinions differing with the Minister’s earlier view that the Bill did not restrict the media. If the Minister was still of this view, why did he hold it? The former Minister of Intelligence Mr Kasrils, supported the public interest override for the purposes of disclosure, why do you depart from that view? Information peddlers, when producing false documents, relied on gossip, innuendo and false information. The question was why the intelligence community believed it? It seemed as if the massive capacity problem the National Intelligence Agency (NIA) faced was being remedied through the Bill. This was an administrative problem that could not be remedied via legislation. Had the Department conducted a cost analysis of the Bill because in the Bill’s Memorandum it stated that there were no cost implications, which was obviously not true. During a meeting earlier this year the Minister had done a presentation on information in an open session. Mr Maynier had requested copies of the presentation which he still had not received…

The Chairperson ruled that he was not going to allow the last question as it was a matter that was discussed in a meeting where the Minister had agreed to make the presentation even though he had requested a closed session - on condition that it would not be distributed. The Committee agreed to that condition. Mr Maynier should pursue this matter with the Minister outside of this meeting.

The Minister agreed that the last question was unfair. Mr Maynier was fully aware that there were procedures which had to be followed within the Committee which had made its decision at the time. Mr Maynier should take up that issue with them and not grandstand about it at this meeting in front of the public. The Ministry would not be responding to the submissions if it had not “listened” to them. The ANC government always listened to the people even the opposition parties, this was why there had to be changes in the Bill.

On the issue of information peddling, intelligence officials were not stupid. The Department was trying to criminalise activities that created conflict within the government. The activities of information peddlers were not always directed at intelligence officials. The Browse Mole report for instance was directed at the Directorate of Special Operations (Scorpions) which was not part of the intelligence community. Information peddling was wrong because the documents were false and the institutions to which these documents were sent were then diverted from their normal duties. Other targets of information peddlers were public enterprises. There was a gap in the law as there were no statutes under which perpetrators could be punished. Using the public override defence as a means to illegally disclose classified information was wrong and should not be allowed. The Department had admitted that there were financial implications in the Bill, it was not clear why this had to be repeated every time there was interaction with the Committee. The Bill would not be implemented immediately, time would be allowed for interaction with all state organs before it became law. There would be priority for the organs of state that were seriously under threat.

Mr Maynier said that the Minister did not address the questions about the Bill affecting the freedom of the press and the one on the public interest override.

The Minister replied that there were various ministers who had previously worked on the Bill - there were Mr Dullar Omar, Mr Joe Nhlanhla, Ms Lindiwe Sisulu and Mr Kasrils. The Bill was withdrawn previously precisely because there were problems with it that needed to be corrected. Within the ANC, issues were always debated. I am not going to sit here and initiate conflict between myself and the former Minister Kasrils. He did a lot of appreciated work on this issue. There was no clause in the Bill that was directed at the media, this was a law of general application. In the media there had been a lot of debate on the Bill and the Media Tribunal as twin threats that the government was proposing to try and gag the media. This was not the government’s intention. The presumption that the Committee had “finished its work” by the media was unbelievable and there had also been personal attacks on members of the Committee. He would like to appeal to the media not to attack Members of the Committee and also to allow the parliamentary process to take its course as the Bill was not finalised.

Mr N Fihla (ANC) thanked the Minister and said that he was appreciative of the explanation from the Minister on the Bill. It cleared up a lot of misunderstandings after what was put forward during the public hearings that the Bill would allow the cover up of corruption.

The Chairperson thanked the Minister, Committee Members and members of the public. This was an ongoing process that would be long. It should not be assumed that this was an accelerated process through the Committee. The next meeting would be somewhere in October…

Ms Smuts interrupted and asked about the submission by Open Democracy Advice Centre (ODAC) which she felt was very good.

The Chairperson said that he had seen the document and was not pleased that it had been distributed. No document shall be distributed at a parliamentary meeting unless it by parliamentary staff and it was a parliamentary document.

Mr M Shilowa (COPE) jokingly asked the Chairperson to lower his temperature.

The Chairperson laughed and thanked Mr Shilowa. Parliament was currently in recess and the Minister would continue with his presentation which was not yet complete during the next meeting.

Members present:
Mr L Landers (ANC); Ms T Sunduza (ANC); Mr N Fihla; Ms M Smuts (DA); Mr T Coetzee (DA); Mr D Maynier (DA); Mr M Shilowa (COPE); Mr S Swart (ACDP); Dr Oriani-Ambrosini (IFP).

Apologies received from: Ms H Mgabadli (ANC); Ms V Mentor (ANC); Adv J De Lange (ANC);

Meeting Adjourned.