Meeting with the delegation from Swedish Committee on Constitution

Constitutional Review Committee

06 March 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Committee interacted with the visiting Swedish delegation on the role of the Committee in exercising oversight over the Constitution. The role of the Swedish Committee on Constitution also extended to the scrutiny of the Constitution in that country and oversight on the performance of Ministers. The Swedish delegation expressed concern about the negative coverage surrounding the Protection of State Information Bill. It was widely reported that the Bill was aimed curtailing the press freedom of the press. The Committee unanimously explained that the Bill had been changed significantly from its original form. There were about one or two outstanding issues. Most of the reports from the press were ill-informed because most people had not actually read the Bill. The main outstanding issue was the lack of a public interest defence.

Meeting report

Introduction and Welcome
The Chairperson introduced himself and his Committee, and then invited Members of the Swedish delegation to do likewise.

The Chairperson indicated that the Co-Chairperson of the Committee- Adv P Holomisa (ANC)- would not be present and had passed on his apologies. He was busy with domestic issues in the Eastern Cape.

Meeting with the delegation from Swedish Committee on Constitution
Mr Peter Eriksson, Chairperson of the Committee on Constitution (Green Party), mentioned that his Committee’s primary objective was to deal with the Swedish Constitutional matters. It also scrutinised and reviewed the role of Ministers on a yearly basis. Individual Parliamentarians often raised concerns regarding the performance of Ministers. The Committee would investigate these complaints and compile a report that would be presented to Parliament.

The Chairperson praised the support and the friendship of the Swedes during and after the liberation struggle, emphasizing that he was not mentioning the long friendship just to be polite. The Swedes played a significant role is supporting South African organisations in exile and in international fora. He then informed Members that the Swedish delegation was in South Africa to learn about the role played by the Committee in Parliament.

Mr B Mnguni (ANC) explained that the Committee which was made up two Committees from both houses of Parliament. It dealt with issues such as the role of traditional leaders in the decision making process. Recently, the Committee dealt with the issue of languages where certain groups had lobbied for SeSotho Sa Lebowa to be an official language, in addition to the existing 11 official languages. The Committee also dealt with submissions on a yearly basis from the public. The submissions were mostly about service delivery complaints. The submissions that were related to equality, human rights, gender and discrimination against women were forwarded to the relevant Chapter nine Institutions. 

Mr Eriksson voiced concern about the negative news surrounding the Protection of State Information Bill, and the reported threats to freedom of the press. Many ordinary Swedes failed to understand what the issue was because the South African democracy was highly regarded.

Mr S Swart (ACDP) mentioned that the opposition parties had been involved in the deliberations around the Bill. The “problematic” parts of the bill had been redrafted substantially. If the improvements in the Bill were measured on a scale of 1 to 10, the improvements, it would score a 9. There were about one or two outstanding issues. Most of the reports from the press were ill-informed because most people had not actually read the Bill. The main outstanding issue was the lack of a public interest defence. The Bill was now with the National Council of Provinces (NCOP) and public hearings were in the process.

Ms D Smuts (DA) said that the media felt that their interests were threatened because journalists felt that some information, which might be construed as state information, could land them in court or jail. Her party would oppose the passing of the Bill, and then petition the President. If all failed then the DA was willing to take its views on the Bill to the Constitutional court. The DA had particular problem with the classification of information and felt that information should only be classified only if it threatened national security. The DA wanted a public defence clause regarding possession and use of information because it was badly written in that Bill. The courts would have to decide whether the information was disclosed or not. She then hastened to say that it was regrettable that South Africa was portrayed in a poor image due to ill-informed commentary in media circles.

Ms Josefin Brinck, Swedish MP (Left Party) enquired about the protection for whistle blowers.

Ms Smuts explained that South Africa had an existing statute that protected whistle blowers. However, the Bill did not state that whistle blowers would be protected especially when they were dealing with state information. There were certain problems in the intelligence forces and the DA wanted protection for whistle blowers within the intelligence community. Her Party wanted an equivalent of the Canadian provision; which said that whistle blowers had a hierarchy of avenues where they could report to before handing over information to the media. She then asked whether the Swedish intelligence forces had a provision for reporting information to the press when they felt that it deserved to be exposed.

Ms Brinck explained that in Sweden journalists were protected by the fundamental law not to disclose their source of information.

Mr Landers explained that the Bill was mainly about the protection of state information. He then quoted Professor Irwin Kotler, Canadian law expert who was the former Canadian Minister of Justice, “ the right to freedom of expression and the freedom of the media was not absolute” Some people in South Africa felt that media freedom was sacred. The Promotion of Access to Information Act enabled citizens to have access to state information. He was surprised to learn that in Britain there were secrete courts, with secret prosecutors that prosecuted people without the public knowing.

Ms Ann-Britt Asebol, Swedish MP (Moderate Party) mentioned that in Sweden, the media was generally regarded as the third power of society. Journalists had the freedom of the press but they had to work within the guidelines of the law and journalistic ethics. The system worked reasonably well, even though journalists sometimes overstepped their boundaries.

Mr J Jeffries (ANC) said that media freedom differed from one society to another. In South Africa not even a single journalist had ever been forced to reveal his/her sources since 1994. Courts in South Africa could compel journalists to reveal their sources, but it had never happened. The Bill was not against journalists. The Joint Intelligence Committee of the National Assembly and the NCOP dealt with intelligence matters and performed oversight over intelligence matters. It was interesting that the opposition parties saw the acute misrepresentation of the Bill in the media.

Mr M Masutha (ANC) said that the matter of freedom of expression had been debated by the Joint Review Committee. That was after Members during the Parliamentary debate could say anything without fear of civil or criminal prosecution. He then asked a rhetorical question saying “ how did the right of members to talk about anything in the Chamber compare with freedom of the press?”. Members of Parliament in the Chamber would be on top of the hierarchy, while the rest of society would not enjoy such freedoms according to principles of Jurisprudence.

Dr M Oriani–Ambrosini (IFP) said that his party never felt that media freedom was threatened in South Africa. According to the earlier version of the Bill, hypothetically if a Member of Parliament had a secret state document, and put that information in the public domain, they could be charged for not handing that document to the police. The public domain clause was a major setback in the Bill. He decried the horrendous manner in which the Bill was presented earlier. He then thanked Mr Landers for his sterling work in correcting the Bill and praised the ruling party for its flexibility in formulating the Bill. He pointed out that the media continued to portray the Bill in a negative way even though most of the wrong parts in the Bill had been changed. He mentioned that the public was given extensive ambit to make inputs on the Bill.

Ms Smuts explained that media freedom was enshrined in Section 16 of the South African Constitution explicitly. Misleading commercial information and defamation was not allowed at all. The Electronic Media was regulated but print media was not regulated. There was no justification to regulate print media. The electronic media could not be relegated to self-regulation because of the electromagnetic spectrum.

Mr Eriksson said that his delegation came to South Africa on a study tour to learn, rather than to criticise because they were not experts. He then lauded the important role played by South Africa in regional and international issues. In democracy, matters like freedom of the press were pivotal in the development of any country.

Mr Masutha explained that under the Constitution the executive was not expected to make laws, however, the Executive often initiated legislation with many “potholes” in it. Parliament then had to work through that piece of legislation rigorously to ensure that it reflected the views and benefited the country as a whole.

Mr Landers mentioned that when his Committee often visited other countries it was a norm to meet other legislators. He cited the example of America, saying that Committees struggled to meet their counterparts; he compared it with setting up a meeting with the pope. The EU countries did not have such hang-ups; in Germany the Committee even met the Justice Minister.  He then thanked the Swedish delegation and said that both sides benefited from such interaction. The delegation was then offered a copy of the Bill.

The meeting was adjourned


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