Minister of State Security second meeting on concerns raised during public hearings

Ad Hoc Committee on Protection of State Information Bill (NA)

21 October 2010
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The approach in the Protection of Information Bill was underwritten by the International Convention for Human Rights and European Covenant for Human Rights. There was a three-part test that determined when information could be limited: a limitation should be prescribed by a clear and precise law; it should be directed towards achieving at least one of the legitimate aims of the afore-mentioned treaties and be justifiable and necessary in a democratic society. The Bill did not deviate from international best practice, international law or the Constitution. Some of the information that the Department of State Security sought to protect was: Legitimate Intelligence Structure Sources; Ongoing investigations of state security structures and legitimate operational Methods, doctrine, facilities and personnel of security structures. The Department of State Security was adamant that the public interest defence was not harmonious with the aims of the Bill and therefore should not be added for purposes of disclosure. The State Security Ministry was of the view that the Bill was aligned with the Protected Disclosures Act and the Promotion of Access to Information Act.

The Democratic Alliance expressed concern that the Minister was still of the view that the Bill did not affect the media - especially in light of the provision in clauses 18, 18, 39 and 38. The ANC members were supportive of the Minister’s comments. The opposition Member in the Committee highlighted the practical problems of accessing information documents about corruption via the Promotion of Access to Information Act. From practical experience this would be a dead end. The introduction of the Protection of Information Bill would compound this.

Meeting report

Presentation: Second Submission by the Minister of State Security
Guiding Principles for the Bill
Dr Siyabonga Cwele, Minister of State Security, said that the approach adopted towards the Bill was underwritten by the International Convention for Human Rights and the European Covenant for Human Rights. Both of these instruments provided for the limitation of the right to freedom of expression on the basis of national security. There was a three-part test that also determined when information could be limited. The three part test entailed that a limitation should be prescribed by a clear and precise law; it should be directed towards achieving at least one of the legitimate aims of the afore-mentioned treaties and be justifiable and necessary in a democratic society. The Department had included in the Bill certain pre-requisites for classification so as to ensure that any of the legitimate grounds for classification were not abused for the purposes of wrongdoing or mal-administration. The Bill did not deviate from international best practice, international law or the Constitution.

What Information Do We Seek to Protect       
Legitimate Intelligence Structure Sources
Legitimate operational Methods, doctrine, facilities and personnel of security structures
Sensitive confidence in international relations
Ongoing investigations of state security structures
Details of criminal investigations and legitimate police and law enforcement methods
Economic, scientific or technological secrets vital to the Republic’s stability, security, integrity and development.

We remained convinced that adding a public interest defence would be tantamount to shredding the Bill even before it became law. One of the reasons why the United Kingdom removed the public interest defence from its statute books was because it made the law unworkable and provided a loophole that was exploited by many for self serving purposes. With the provisions of the Protected Disclosures Act, Promotion of Access to Information Act and public interest access to information aligned in this Bill, adding a public interest defence would be overkill. Classification levels were already decreased from four levels to three and information could be requested for declassification.

Mr D Manyier (DA) said that after the last presentation, the Minister made statements which were that the Bill would not affect freedom of the press as there was no clause which specifically singled out the media. Would the Minister concede that the Bill in its current form - especially given section 18, 39 and 38 – actually had dramatic implications for investigative journalism? Did the Minister concede that there were circumstances where it would be in the public interest to put national security information in the public domain? This would be where a document was revealed which exposed corruption, criminality or wrongdoing.

The Minister replied that the Bill was not contrary to the Protected Disclosures Act. The Bill allowed for employees to report wrongdoing to relevant authorities. They could also take information to the Public Protector or Auditor-General. Nowhere did the Protected Disclosures Act prescribe for documents to be taken to the media for exposure. There were extensive measures in place where corruption and mal-administration could be exposed. There were further penalties for those officials who would use the Bill to hide corruption. The Department of State Security was amenable to the proposals from the public hearings that the sentences for wrongful classification were not proportionate to the seriousness of the crime. In this regard the Department had requested the Committee to increase the sentences. The Department was of the view that South Africa should not try and invent what was not done in other democracies; the public interest defence was not a problem if it was used to access information where it was in the public interest. The Department was not in agreement with public interest being used as a defence for the purposes of publishing information. The Bill would also not hinder the work of the Protector or Auditor-General. The Bill was not there for the purposes of regulating the media. The media was a very important aspect of society. The Department had no intention to include a clause that hindered the work of investigative journalist. There was a set procedure in the Bill that prescribed how a classified document should be handled - should it be in the hands of a person other than an official with authority - namely that it should be handed to the police or the correct official.

The Chairperson commented that Mr Maynier was on the pulse of the issue because clause 18 dealt with information peddlers and made a lot of people uncomfortable. Mr Maynier must have surely conceded that there was some information that had to be classified because the clause dealt with classified information.

The Minister interrupted and said that the Bill was a law of general application. There was a small matter that had to be raised however. At a meeting before the World Cup, the Department made a presentation where it was presented under certain limitations that were decided upon by the Committee. The Committee took certain decisions by which the Department intended to abide. The Committee had agreed that there would be an open presentation but the document would not be circulated to Members. However there were some Members in the Committee who were very vocal in the media about the document not being released. The Committee should consider this matter as the department was under onslaught for the release of this document.

The Chairperson said that the Committee would resolve the matter at a later stage.

Ms Mgabadeli (ANC) said that in the formulation of the Bill there had to be mutual co-operation and individuals should take responsibility and not sit back. Certain voices should not be exaggerated above those of others such as how the media was doing.

Mr Fihla (ANC) commented that in the Sixties, minimum sentences were introduced by the government and many ANC members were arrested, there were no complaints. Today the government had adopted minimum sentences in this Bill and yet there was a big outcry. Certain serious acts committed against the state deserved minimum sentences to be imposed, for example, espionage or a threat to overthrow the government. It was important to note that not all offences would fall under the minimum sentences prescription.

The Minister commented that he agreed with Ms Mgabadeli. The issue of minimum sentences was not a political decision; it was so that the punishment fit the crime as espionage and information peddling were serious issues. The Department had responded positively to the complaints that the Bill was too broad by removing those areas that were deemed to be vague and broad. However those who were protesting and marching continued with their song that ‘the Bill as it was in its current form’. They did this because they just wanted to march. There was nothing wrong with marching but people should be honest when they did it as the ANC government had responded positively to some of the objections.

Mr Maynier said that the Minister’s argument that the Bill did not affect the media was the legitimate procedure argument; this was to say that there was a procedure to follow if members of the media came across a classified document. If one looked at this practically, did the Minister accept that if a member of the media came across a classified document exposing wrongdoing in the arms deal, and handed it to the police there would be no investigation given that the Directorate for Priority Crimes (Hawks) had just closed the arms deal investigation? Another alternative would be to apply for access to such a document via the Promotion of Access to Information Act (PAIA). From practical experience this would be a dead end. The legitimate procedural route proposed by the Minister would practically have the effect of covering up corruption. Was the Minister of the opinion that it was legitimate to classify information about the costs of the President’s air flights?

The Minister replied that police did in fact carry out investigations and Parliament was a body that had the right to call individuals to account. It was worrying to hear that in the scenario posed by Mr Maynier, the police would not carry out an investigation; this was a dangerous statement to make because the implication was that there was no confidence in the South African Police Service (SAPS). His understanding was that the police had been investigating the issue of the arms deal for the past ten years and there was no evidence to take to court. It was unfair for a Member of Parliament to say that the police did not conduct investigations. He could not comment on the question on the President’s flight; however there was no country that provided detailed information on its president’s travel arrangements. There was a presidential budget which was subject to Parliament’s oversight procedures.

The Chairperson asked if there would be any changes in the relationship between the Joint Standing Committee on Intelligence (JSCI) and the Department of State Security given the nature of the Bill.

The Minister replied that the Bill did not restrict or amend the Act that set up the JSCI. The Department would account in even more detail once the Bill became enacted. There would be more of a role for the JSCI in terms of oversight and accountability. The JSCI was working closely with other foreign governments on issues of accountability, openness and secrecy in government. There was no country that was better than South Africa when it came to accountability in government secret structures.

The Chairperson asked what was the perception amongst South Africa’s
neighbours and international partners regarding the Bill.

The Minister replied that most international partners and neighbours did not have a stringent oversight system like South Africa had. He had attended an international conference on state security in Moscow. The various nations which were in attendance discussed real state security threats and not just terrorism. There were concerns that some of the threats would be dealt with at a multilateral level such as the United Nations.

The Chairperson thanked the Minister and said that the next meeting might be on Tuesday 26 October [PMG note: The Committee will not be meeting on 26 October] but he was trying to secure a meeting for Friday 29 October [PMG note: permission for meeting still not confirmed].

Members Present: Mr L Landers (ANC); Mr Fihla (ANC); Ms Mgabadeli (ANC) and Mr D Maynier (DA). Apologies were read out individually by the Chairperson for the rest of the Committee Members who were not present.

Meeting Adjourned.


22 OCTOBER 2010

The Ministry of State Security appeared, for the second time, before the Adhoc Committee that is working on the Protection of Information Bill.

We used this opportunity to further provide details on our proposals to make this bill better in terms of content, organization and application.

This work follows our interaction with the Committee on 17 September 2010, where we provided our initial response to the inputs made by the public during the hearings.

On the occasion of today’s interaction with the Committee, we reiterated that our intentions with this Bill are clear and well articulated. We reflected on the international guiding principles on national security matters and access to information. We emphasised the need to further work on this bill, to produce the piece of legislation to deal with the challenges of information peddling, espionage and illegal alteration and loss of state information. In addition, the legislation would result in ensuring that citizens of this country are short changed of their right of access to information.

We are on record having stating exactly which categories of information require protection. In this regard, we proposed that concept of ‘national interest’ be deleted completely from the Bill.  This is a huge development which deals effectively with the fears expressed that ‘anything and everything’ could be classified on the basis of this concept.

We further proposed that the concept of ‘commercial information’ be deleted and instead use the definition as provided for in the Promotion of Access to Information Act (PAIA).

Clearly, with all the fundamental amendments we have proposed and are still proposing, this bill will take a new shape and will not be passed in its present form.

In today’s interaction with the Committee, we:

Emphasised that our approach is based on the international best practice, which are in line with the provisions of our own Constitution.
Clarified what information we seek to protect, this in the wake of the continued distortion of our position in this regard. Government is not using this bill to classify information on corruption, inefficiencies and maladministration, amongst other things. The information we seek to protect is that which is already not meant to be in the public domain, in terms of PAIA. The other category is information which is vital to the national security of this country, in terms of:
hostile acts of foreign intervention;
terrorist and related activities;
information peddling;
espionage; and
unlawful acts against the constitutional order.

We wish to indicate, once more that having considered seriously the submissions to create a section on defences in this Bill, we remain convinced that conceding to such a demand would be tantamount to shredding the Bill even before it becomes law.

We also reiterate our view that using the public interest as a defence for publishing classified information is not consistent with our approach. As we indicated, public interest should be used for requesting access to such information, as provided for in this bill and in terms of PAIA.

As government, we remain committed to the constitution as it provides guarantees against the abuse of power.  As Deputy President, Mr Kgalema Motlanthe indicated at the opening of the joint meeting of government and SANEF last week, "It is therefore surprising that recently draft legislation has been used as a rallying point to project the government as a threat to freedom of expression, including freedom of the media,”.

It is our hope that our second submission to the Adhoc Committee for consideration will clarify our approach and will take the debate forward.

Issued by:
Ministry of State Security. 
Brian Dube: Head of Communication
082 418 3389.


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