Protection of State Information Bill: public hearing Day 2

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

28 March 2012
Chairperson: Mr R Tau (ANC; Northern Cape,)
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Meeting Summary

The Diakonia Council of Churches (the Council) noted that an accountable democracy would be built on transparency and a free flow of information. No piece of legislation should contradict the constitutional need for an open and transparent government. It was feared that this Bill could be used to limit embarrassment. The point was made that many of those objecting to the Bill had probably not read it, and Diakonia submitted that there was much that had been improved. However, it urged that a public interest defence clause must be included in the Bill. Classification should be restricted to carefully defined matters and the intelligence agency should not be free from public scrutiny. Whilst it was accepted that, for instance, details of defence contracts should not be in the public domain, acts of corruption must be made known. Penalties for unauthorised disclosure should be applied only to those responsible for keeping the secrets. It also urged that every attempt must be made to preserve and enhance the independence of the Classification Review Panel (the Panel).

Media Monitoring Africa (MMA) noted concerns that much of the national discourse to date had not been well-informed, and there had not been sufficient reporting on the positive aspects of the Bill, particularly highlighting the dangerous and retrogressive laws currently in force. It made seven proposals for amendment. MMA outlined African Union treaty obligations and principles, noting that earlier submissions had not touched on the point that the Bill, in its present form, was in violation of those. South Africa must recognise that democracy and socio economic development depended on open, transparent and accountable government, and that corruption posed a severe threat to economic and social development. Other examples of international best practice were also cited. Particular concerns were noted that clause 1(4) ousted the supremacy of the Promotion of Access to Information Act (PAIA) and because PAIA was a piece of legislation giving effect to Constitutional rights, this could be challenged as unconstitutional, and should be deleted. MMA proposed that clause 19 should be replaced with a new clause, reading “a request for access to a classified record that is made in terms of the Promotion of Access to Information Act must be dealt with in terms of that Act”, since PAIA struck the correct balance between the right of access and protection of legitimate state interests. The whole of Chapter 8 should be deleted, and appeals should be handled under PAIA. Clauses 34(2) and (3) were adequately covered by the PAIA, and could be deleted. The concerns relating to the limitations on the freedom of expression included a suggestion to amend the wording of clauses 43 and 49 by inserting “the disclosure of which causes or is likely to cause serious or irreparable harm to the national security of the Republic”. Grammatical errors in clause 47 should be corrected, although the content was welcomed. It was submitted that these amendments would achieve an appropriate balance.

The Public Protector South Africa (PP) suggested that the Committee must consider whether the Bill was in line with South Africa’s international responsibilities, particularly the International Convention on Civil and Political Rights (ICCPR); whether it was in line with the Constitution, PAIA, the Promotion of Access to Justice Act (PAJA) and the Equality Act, all of which had the same status as the Constitution; and whether the Bill would promote good governance. In addition the provisions of Chapter 9 of the Constitution, and the special position of the Chapter 9 institutions, must be taken into account. The Bill, whilst good in intention, had created some adverse unintended consequences. The space currently afforded to the Public Protector was narrowed. At present, no institution was exempt from providing information to the PP, if subpoenaed, but this Bill may well allow institutions to try to hide behind classification. In addition, the PP frequently came into possession of classified information, unwittingly, and it would be unduly onerous, firstly to criminalise that, and secondly to require the PP to return documentation to the police service. The current formulation of the Bill ignored the fact that currently, an individual may approach the PP or the South African Human Rights Commission (SAHRC) for assistance in accessing information, as well as the PP’s current power to resolve disputes relating to access of information. The PP did not believe that the restrictions were properly proportionate, precise and aligned with the constitution. It proposed that the definition of “national security” must be reviewed, in line with the principle of precision. The scope of Chapter 4 was too broad. The requirement that a person must approach the court to have a classification reviewed was contrary to section 237 of the Constitution. Chapter 5 left critical details in the discretion of the Minister. The ten-year period for review was too long. Clause 12, which imposed a blanket exemption on information related to national security, was inappropriate and inconsistent with the requirements for access to information, both in the Constitution and international law. Chapter 7 did not clarify how the activities of the Panel would be funded, and she suggested that it should be accountable to Parliament for funding, not the Minister. The proposals to create some mechanism to allow Members of the public to appeal to the Panel were supported. The offences should distinguish between a person who actively took steps to procure classified information, and a person who was merely in possession of the information. Concerns with the harsh sentences were expressed. The PP felt that it was necessary to distinguish between the public interest override and the public interest defence. The override would be called into play if information was needed that had been classified, but a public interest defence was also needed. The PP stressed that the fact that a defence may be claimed did not mean that it would be accepted, and that an objective test would apply.

The Alternative Information Development Centre commenced a presentation, but the Committee asked that this not proceed because the submissions did not address the Bill itself, but were instead regarded as making a number of wide political statements, which Members thought were inappropriate in this forum.

Higher Education South Africa (HESA) noted that the right to academic freedom was a one of the specific rights under section 16 of the Constitution. HESA had several concerns about the Bill, detailed in the written submission in depth, but its oral presentation was confined to three focus areas. Firstly, it was concerned that, other than in clause 19, no time periods were set out, and delays might constrain academic researchers. HESA asked that the public interest override be broadened to include academic research. HESA was concerned that the requirement, in clause 41, that some foreign nationals may need to register, was far too broad. Whilst it accepted that this was reasonable in the case of a foreign national who was already an intelligence operative in another country, or had the real expectation of becoming a foreign intelligence agent, it did not believe that it was reasonable to require a person who “had the potential” to be approached to become a foreign intelligence agent to register. There were many foreign students in South Africa who may have worked, or had the potential to work for security agencies in other countries, particularly if they were engaging in political or security studies, and there was a fear that they could be targeted, harassed and criminalised for failure to register. HESA suggested that al references to potential or expectation should be deleted, so that registration would only be required from those who were existing intelligence agents. HESA was also concerned that clause 44 criminalised possession of classified information, since researchers may unwittingly come into possession of documents that had not been declassified prior to dissemination. In a more general submission, the implications of the Bill on academic freedom were set out, and the benefits that academics offered not only to the public, but to intelligence and security services themselves. A secretive security cluster would be dangerous. HESA was keen to explore whether researchers would be permitted to access classified information in some other way than through the procedures currently set out in the Bill and would be happy to engage further and supplement this submission.

Members raised concerns that if the public interest defence was allowed, something may be published that was not in fact in the public interest, but by then the harm would be done. The Council noted that there was a need to trust the legislative process and the integrity of journalists. Members suggested that perhaps it might be appropriate to have a mechanism to approach in advance of publication, asked how a balance could be achieved between the need for secrecy and the principles of transparency, asked if the presenters were of the view that the portions of the Bill dealing with valuable information should be removed, and how the process of ensuring proper protection could be managed. They asked if presenters were happy with the role of the courts, and whether they believed that the provisions of clauses 6 and 14 might not be sufficient to protect against classification that was intended to cover up corruption. Members also asked if the Register as set out in clause 11(c) would not provide further comfort in providing information about what was classified. Members asked why MMA did not raise the public domain defence, and asked for comment on the appeals mechanisms. Members and some presenters noted that whilst international practice could be quoted, it was nonetheless important to find a solution that catered for South Africa’s unique needs. They sought clarity on the effects of the Bill on the Chapter 9 institutions, the fears around unconstitutionality, and wondered if the institutions would be able to operate effectively if the Bill were passed. They asked the PP if it would be in favour of exemptions, but the PP responded that it would prefer to be afforded a status similar to courts. Members sought clarity whether a court could depart from minimum sentences. The Committee indicated that it would prefer the Panel to report to “Parliament” rather than the “NA” as currently worded. Members asked HESA to expand on why researchers might wish to access classified information, why it suggested alternative methods of getting it other than through the courts, whether it was seeking an overall exemption, questioned the likelihood of delays on the part of the state affecting research, and asked where commercially-commissioned research stood. They asked for further comment on the provisions of clause 41, asked if academic freedom should be considered differently from other freedom, and what the experiences of HESA were at the moment. HESA was asked if it was likely to apply to opt in as an organ of state.

Meeting report

Protection of State Information Bill: Public hearings day 2
Diakonia Council of Churches submission

Rev Ian Booth, Diakonia Council of Churches, said that the Council was founded in 1976 as an ecumenical non profit organisation with 16 churches and two member organisations, and aimed to remove political, social, and economic. The Protection of State Information Bill stirred up many memories of past injustices, and he urged that care must be taken to avoid a return to the past. An accountable democracy would be built on transparency and a free flow of information. Whilst clause 3 stated that classification, reclassification and declassification applied to the security services and oversight bodies, clause 13 authorised any head of an organ of state, beyond the security cluster, also to classify. This had the potential to undermine other pieces of information, like the Promotion of Access to Information Act (PAIA) and the Labour Relations Act. The Bill was at odds with the spirit and letter of the Constitution and Freedom Charter, which allowed freedom of expression, freedom of association and freedom to impart information and ideas. Accountability of government could not be guaranteed and no piece of legislation should contradict the constitutional need for an open and transparent government. It was feared that this Bill could be used to limit embarrassment. The public would not be able to know if material was classified, nor wrongly classified.

The absence of a public interest defence clause was the strongest objection. The prescribed jail sentences would silence journalists and whistle blowers who knew of corruption, yet would be afraid to tackle issues, and this in turn would compromise the quality of democracy.

The Council therefore submitted that a public defence clause must be included in the Bill. Classification should be restricted to carefully defined matters and the intelligence agency should not be free from public scrutiny. The details of defence contracts should not be in the public domain, but acts of corruption must be made known. Penalties for unauthorised disclosure should be applied only to those responsible for keeping the secrets. The Bill provided for an independent body appointed by Parliament. The Council urged that the provisions of clause 23 must never be over-ruled, or undermined, in relation to the Classification Review Panel (the Panel).

Mr T Mofokeng (Free State, ANC) asked what the Council suggested to address a situation where a journalist published something, alleging that it was in the public interest, but the court subsequently ruled that it was not. By that stage the information could have caused damage.

Rev Booth said that this was how matters worked at the moment. There was a need to have some trust in the legislative process, and to trust that journalists who revealed the information would ensure that it was in the public interest and was not liable to challenge.

Mr Mofokeng thought that it might be more appropriate to approach the Court, in advance, to check that the information sought to be released was indeed in the public interest. He cited the report that had been submitted to the United Nations on the Iraq issues; only later had it emerged that the information about the weapons of mass destruction was misleading, but by then the damage had been done.

Rev Booth said that he would support checking of the information before it was published, but then appropriate mechanisms must be included in the Bill. At the moment, the Bill criminalised mere possession, which was a major flaw.

Mr D Bloem (Free State, COPE) asked Rev Booth what role Diakonia Council had played in the freedom struggle.

Rev Booth said that the Council was formed in March 1976. One of its first cases involved speaking up for someone detained without trial. It continued to do this for the next 20 years, despite being unpopular with other churches. The Council undertook a major review of its priorities and organisation every five years. After 1994 it had concentrated on dealing with economic, environmental and social justice issues.

Mr Bloem asked how a balance could be achieved between the need for secrecy, and the principles of transparency, given that intelligence agencies were working with sensitive information.

Rev Booth said that the Council was seeking a way to distinguish between corrupt activities and information that genuinely needed to be protected. It was clear that misleading information had been sold in the Iraq matter, which illustrated the need to be able to ascertain the truth.

Mr R Lees (KwaZulu Natal, DA) took the point that classification should be strictly defined, to limit it to intelligence and security structures. He asked if the Council was of the view that the portions of the Bill dealing with valuable information should be removed.

Rev Booth said that ideally the Council would like to see the Bill restricted to confidential security information that was currently classified. It believed that the Bill was too broad, and would like to find a way to distinguish between information to be classified and information to be protected.

Mr S Mazosiwe (Eastern Cape, ANC) asked if the Council would be in favour of the notion that every citizen should have the right to publish any information, and how there should be management of the process within government.

Rev Booth did not believe that it was in the State's interest to allow anyone to publish anything. A distinction had to be drawn between material that genuinely required protection and was legitimately classified, and information that, although classified, should be brought to the attention of the public. The Council would support a court process that checked the information before it was brought into the public domain. He made the point that not all citizens read the documents before expressing a view; he had been surprised, in KwaZulu Natal, by the number of people who criticised the Bill without ever having read it. He would not want that kind of response to inform public opinion, because it was essentially based on misinformation.

The Chairperson asked if there was a general lack of understanding about the Bill.

Rev Booth clarified that his frame of reference, when making this statement, was the Durban area, and he could not speak for the national discourse.

Ms N Ntwanambi (Western Cape, ANC) asked for a summary of what the Council was asking.

Rev Booth said that the Council acknowledged the need to classify information, but felt that the Bill moved outside reasonable parameters, by providing that any head of an organ of state could classify, by using the opt-in provisions. The Council would prefer to see the Bill limited in its application to security agencies only.

The Chairperson said that clause 14 set out the conditions for classification, and later in the Bill there was reference to the Classification Review Panel (the Panel). He asked if the Council’s submission was essentially addressing clause 14, or clause 20.

Rev Booth acknowledged that clause 14 prescribed circumstances in which classification could not take place. The question was, however, how the public would know that an abuse of the process had occurred. He urged that clause 23, which set out conditions intended to ensure the independence of the Panel, must be strictly observed.

The Chairperson asked if the Council was satisfied with the provisions of the Bill relating to the role of the courts.

Rev Booth confirmed that he had no problem with this.

Mr T Chaane (North West, ANC) said that concerns had been repeatedly expressed that this Bill could be used to cover up corruption. The Bill set out the processes on how information should be classified, and a process, through the Promotion of Access Information Act (PAIA) to obtain release of classified information. He asked if these provisions were not sufficient. He also referred to comments made on the previous day the poor would experience particular difficulty in accessing information, and asked for comment on that concern.

Rev Booth agreed that the Bill was clear as to what could or could not be classified. However, he reiterated the concern that the public was unlikely to know whether information had been incorrectly classified, or powers abused. He agreed that the rights of the poor were exactly the same as the rights of wealthier people, but agreed also that the poor tended to suffer more from corruption, because enrichment usually took place at the expense of the most vulnerable sector, using money that could have provided services.

Mr L Nzimande (KwaZulu Natal, ANC) referred to clause 11(c), which spoke to the Register, and asked whether this Register would allow people to know about the classification, or whether more was needed.

Rev Booth countered that he was not sure whether the public would have access to that register, and whether the register would allow the public to get the information it required.

Media Monitoring Africa (MMA) submission
Ms Carol Netshifhefhe, Researcher, Media Monitoring Africa, noted that MMA was formed in 1993, and wished to create a responsible media that enabled an informed and engaged citizenry in Africa. It supported an ethical and high-quality media, and promotion of media freedom. MMA had conducted over 120 media monitoring projects. It had a human rights bias, and was of the view that both the print and broadcast media, and government, had good intentions. It believed that informed participation from the public and citizens were essential to democracy.

Ms Justine Limpitlaw, Media Lawyer and Board Member, MMA, said that MMA welcomed much of the Bill, and the commitment to repealing the 1982 Protection of Information Act, in favour of new legislation that protected genuine national security interests, respected the constitutional rights of citizens and was in line with African Union (AU) treaty obligations. However, it noted concerns that much of the national discourse to date had not been well-informed, and there had not been sufficient reporting on the positive aspects of the Bill, particularly highlighting the dangerous and retrogressive laws currently in force.

Having said that, MMA believed that some of the provisions were problematic, unconstitutional and not in accord with AU treaty obligations or international good practice. MMA wished to make seven proposals for amendment. It did not believe that the whole Bill needed to be revised, but urged Parliament to address and correct the provisions that were likely to be set aside if challenged.

Ms Limpitlaw outlined the AU treaty obligations, noting that not many submissions had addressed these. The AU was critical to political and economic development in Africa, and provided political guidance and direction. South Africa played a leading role in the AU, and was one of the few countries that had both signed and ratified its treaties and conventions. Many of those would give guidance to the NCOP on the provisions that should be in the Bill. The African Charter on Human and People’s Rights gave the right to receive information, and required state parties to ensure the right to development. The Declaration of the Principles of Freedom of Expression noted that nobody should be subject to any sanction if they released, in good faith, information on wrongdoing or information that would disclose a serious threat to health, safety or the environment, save where the imposition of the sanction served a legitimate interest and was necessary. These Principles furthermore required that a state’s secrecy laws must be amended to comply with freedom of information practice, that states must review criminal restrictions on content, and that freedom of expression should not be restricted on national security grounds, unless there was a real risk of harm to a legitimate interest.

The AU Convention on Preventing and Combating Corruption was particularly important. It called upon states to create an enabling environment to enable civil society and the media to hold government accountable, to insist upon transparency, and ensure that the media was given access to information in cases of corruption, provided that dissemination of this information did not affect either the investigations or the right to a fair trial. These were critical clauses that directly linked the ability of civil society to hold government to account with the right of access to information. The African Charter on Democracy, Elections and Governance aimed to promote and strengthen good governance through institutionalisation of transparency, accountability and democracy. Article 3 said that there must be transparency and fairness, and that corruption and the notion of state impunity must be combated and rejected. States must undertake regular reforms, improve efficiency in combating corruption and promote freedom of expression and a professional media.

All these provisions illustrated the fact that South Africa must recognise that democracy and socio economic development depended on open, transparent and accountable government. It must be recognised that corruption was a threat to economic and social development on the Continent. She emphasised a point made by the Diakonia Council of Churches that the poor simply did not have money to access their rights, and that when state money was siphoned off through corruption, it impacted most negatively on the poor. Corruption would flourish where there was lack of transparency, so the media must have the ability to obtain and publish information.

Ms Limpitlaw noted that in addition to the treaty obligations, there were several instances of international best practice, expressed in the Johannesburg Principles on National Security, Freedom of Expression and Access to Information (the Johannesburg Principles), which were developed by Article XIX and endorsed by the United Nations (UN) Special Rapporteur. She quoted principles 1(d), 1.1.(b) and 2(a) and (b) (see Powerpoint presentation for details) and noted that Principle 2(b) was echoed in the Bill. Principle 15 was critical, but the current wording of the Bill did not comply with it. This stated that no person may be punished for having disclosed information pertaining to national security, if the disclosure did not harm and was not likely to harm a legitimate national security interest and if the public interest in having that information outweighed the harm from disclosure. Principle 8 of the African Platform on Access to Information Principles stated that rights of access to information could be limited only by strictly-defined exemptions. Information should only be withheld if its disclosure would cause significant harm, and if the public interest in withholding the information was greater than the public interest in disclosure, and only for so long as harm would occur. Protection for whistle-blowers was set out, and this too referred to the public interest.

Ms Limpitlaw said that the MMA had grouped its proposals, which were set out in summary in the Powerpoint presentation, and in more detail in the written presentation (see attached documents).

Ms Limpitlaw noted that the earlier drafts of the Bill had not ousted PAIA, but the current clause 1(4) did so. She emphasised that PAIA was not ordinary legislation, being one of the Acts that was drawn specifically to give effect to rights set out in the Bill of Rights. PAIA not only protected the right of access to information but also protected legitimate state (and private) interests, where non-disclosure was required. Section 5 of PAIA specifically stated that PAIA would apply, in the event that any other legislation might seek to prohibit disclosure of the record of a public body. Clause 1(4) was directly contrary to PAIA, and this was particularly problematic. MMA believed that PAIA already set out twelve sufficient grounds where state information may be withheld and highlighted sections 41, 38, 42, 43 and 44 of PAIA, relating to all public bodies, not just the security services.

MMA therefore firstly proposed the deletion of clause 1(4). Clauses 19, and 34(2) and (3) also contained procedures that were not set out in PAIA. MMA proposed that clause 19 should be replaced with a new clause, reading “a request for access to a classified record that is made in terms of the Promotion of Access to Information Act must be dealt with in terms of that Act”, since PAIA struck the correct balance between the right of access and protection of legitimate state interests. The whole of Chapter 8 contained an appeals process that was not included in PAIA, and MMA proposed that this be deleted, and that appeals should be handled under PAIA. Clauses 34(2) and (3) were adequately covered by the PAIA, and could be deleted.

Ms Limpitlaw outlined MMA’s objections in relation to limitations on the freedom of expression. She suggested that in clause 43, the words “the disclosure of which causes or is likely to cause serious or irreparable harm to the national security of the Republic” should be inserted between the words “information” and “in”. The words “subject to the Protected Disclosures Act” should be inserted at the beginning of clause 49. Clause 49(a) should also include the phrase “and the disclosure of which causes or is likely to cause serious or irreparable harm to the national security of the Republic”.

Clause 47 was critically important and MMA had been particularly disappointed at the one-sided coverage given by the media. This clause was in line with international obligations and best practice, and the criminal sanctions for people who wrongly classified documents for ulterior purposes were welcomed. However, a number of grammatical errors had to be corrected, as outlined in the submission.

Ms Limpitlaw said that Members of this Committee faced a stark choice, and bore a heavy burden. She submitted that the current wording of the Bill violated treaty obligations, was contrary to international good practice and would almost certainly be ruled as unconstitutional. If MMA’s seven suggested amendments were included, an appropriate balance would be found between protecting the public interest and protecting legitimate national security interests, promoting a free press and free flow of information.

Mr A Matila (Gauteng, ANC) noted that clause 6 outlined the general founding principles of the Bill and asked whether clauses 6 and 14, read together, would not be sufficient for combating corruption.

Ms Limpitlaw responded that these clauses were indeed a major break from the past, which was characterised by a culture of secrecy, but although the clauses were quite good, they did not yet constitute sufficient safeguards. Additional safeguards were needed, particularly in relation to the offences.

Mr Lees was interested to hear the comments about the press bias, saying that although the media may have been seen to report on negative issues only, it was raising legitimate concerns. He noted that only seven amendments were proposed, and asked if MMA believed that these seven issues would address all concerns, or if it would like to see other changes as well. , or whether it. but had decided to limit the numbers of amendments, or whether these amendments would deal with all concerns. He asked if MMA was happy to see the inclusion of valuable information, the impact on competence of the provincial legislatures to deal with provincial archives, which other commentators had highlighted.

Ms Limpitlaw agreed that it was correct that the media report on concerns, but still felt that the reporting on the process and debate was too limited, and that nothing had been said about what clauses 6 and 14 set out to achieve. She was not suggesting that the media were doing a poor job, as it was the task of MMA to deal with the problems. The media had a broad mandate to inform citizens about the workings of government, and it was imperative that the public be informed, not made hysterical. She hastened to add that none of the issues raised were hysterical, but she did not think the positive aspects were adequately reported.

Ms Limpitlaw confirmed that the seven recommendations made were focused specifically on protection of media freedom, and MMA would be satisfied if they were addressed.

Mr Lees asked if MMA had comments to make on the inclusion of valuable information, in the light of concerns that it might be unconstitutional for this Bill to prescribe how provincial archives must deal with matters, as they fell within the exclusive legislative competency of the provinces.

Ms Limpitlaw said that MMA had not looked at this aspect, as it had confined its submission to matters impinging directly on access to information and freedom or expression.

Ms Ntwanambi asked for more information on the assertion that the Bill was unconstitutional. She wondered if MMA was advocating a return to the previous legislation.

Mr Bloem and Ms M Boroto (Mpumalanga, ANC) also asked for more comment on the assertion that the Bill may be unconstitutional, and Ms Boroto asked which clauses were problematic, noting that section 36 of the Constitution did recognise limitations on the right of access to information.

Ms Ntwanambi pointed out that this Bill and PAIA were complementary.

Ms Limpitlaw asserted strongly that there seemed to have been a misunderstanding and that MMA was definitely not advocating for legislation similar to the 1982 Act. MMA had quite a specific argument in relation to the section 36 limitations. She stressed that PAIA was different from other legislation, because it was specifically crafted as the Act that regulated access to information in line with the Constitutional requirements, and in a way that met a balance between legitimate public interests and disclosure. There was a legitimate public interest in withholding information that protected national security. However, clause 1(4), attempted to oust the very Act passed to respond to the constitutional directives. MMA did not believe that any court could uphold this clause. If clause 1(4) remained, it would have a knock-on effect on the alternative appeals and access process. She urged the Committee to reconsider PAIA. Some academics felt that PAIA did not go far enough, but she believed it was a good piece of legislation, and pointed out that none of the PAIA provisions had been struck down, despite substantial litigation on this Act.

She reiterated that MMA believed that constitutional challenges could be made to clause 1(4), and clauses 43 and 49, which impinged on freedom of expression that was foundational to a developmental and democratic state. Any limitation of rights must be reasonable, democratic and necessary, and the least draconian means should be used. Clause 43 did not go far enough, as there should be a link established between the conduct and actual or probable harm, before that conduct could be punished. It was critical that clause 49 was made subject to the Protected Disclosures Act.

Mr D Worth (Free State, DA) noted that MMA had not raised the public domain defence. He noted that although it was asserted that the Chapter 8 provisions were adequately set out in PAIA, the Bill only dealt with state security and intelligence matters, whereas PAIA dealt with all other matters. He asked for comment on the appeals mechanism.

Ms Limpitlaw said that MMA took the view that a specific public interest defence would not be necessary if the PAIA and Protected Disclosures Act (PDA) were made specifically applicable to the Bill as they contained protective mechanisms.

Mr Nzimande noted the interrelationship between the Bill, PAIA and the PDA. Clause 43, which he regarded as a clause granting protection, referred to the PDA, and also recognised “any other law”.

Mr Bloem said that the Chairperson had made it quite clear, from the start, that the NCOP would not merely rubber-stamp what had been done in the NA, and would ensure that it passed an excellent Bill.

Ms Limpitlaw welcomed this statement.

Mr Chaane welcomed the remarks about the need for Members to take a strong leadership stance, and the comments on the media bias. He asked whether MMA would regard the Bill as meeting the constitutional requirements if clause 1(4) were to be removed, or replaced with the original wording, and wondered why this was changed.

Ms Limpitlaw said that she was not party to the NA meeting that decided upon this wording. Originally, it was proposed that a dual system apply, whereas classification would be dealt with under the Bill, and all access under PAIA. However, the NA had decided that this was unworkable and adopted the current provisions. Whilst she agreed that the dual process was not the best one, she still thought that all applications should be made under PAIA, and that the PAIA grounds for withholding access to information would then apply, as a second check to the principles contained in clauses 6 and 14.

Ms Ntwanambi asked for examples of good international practice and queried whether it was appropriate to raise these examples rather than dealing with South Africa’s own unique circumstances.

Ms Limpitlaw said that she had not referred to international examples, because some did not provide good precedents. She believed that the United Kingdom (UK) laws were retrogressive and non-progressive and the UK was very secretive when dealing with state security issues, as shown by the Iraq reports. If the press, in both UK and USA, had been able to interrogate the Iraq dossier properly, they would have realised that the whole edifice was built on questionable grounds. That was why more access, not less, was required. Even progressive and democratic governments could make mistakes and act in bad faith, hence the need to ensure that adequate safeguards were in place. She would not suggest that any international examples be adopted wholesale, and agreed that regard must be had to South Africa’s Constitution and treaties. She was loath to point to any single example and suggest that it was appropriate for South Africa.

Public Protector South Africa (PP) submission
Adv Thuli Madonsela, Public Protector, noted that the Public Protector (PP) was a Chapter 9 institution that acted as a buffer between the state and the public. The Bill was necessary in order to control access to information, to ensure good governance and protection of the rights in the Constitution, and to replace the current outdated legislation. The public’s concerns on the initial draft had been narrowed considerably by the changes already made to the Bill in the NA, but there were still gaps.

Adv Madonsela said that there were three questions that had to be asked – namely, whether this Bill was in line with South Africa’s international responsibilities, particularly the International Convention on Civil and Political Rights (ICCPR); whether it was in line with the Constitution, PAIA, the Promotion of Access to Justice Act (PAJA) and the Equality Act, all of which had the same status as the Constitution; and whether the Bill would promote good governance. International principles and best practices must be examined, and the PP had looked at the Johannesburg Principles and the reports of the Special Rapporteur. The Bill had to balance the public interest in protecting state information, and the public interest in ensuring a free flow of information. The Bill clearly intended to protect the public’s interest but despite the good intentions, there were unintended consequences.

Important principles were set out in the Constitution, in section 1, which spelled out the need for transparency, section 16, relating to freedom of expression, and section 32, read with PAIA, which dealt with access to information in the possession of the state. This Bill must also be examined in relation to Chapter 9 of the Constitution. It did comply with Chapter 8. She noted that both Article 19 of the International Covenant on Social and Economic Rights, and section 36 of the South African Constitution, allowed for limitation of rights.

Adv Madonsela detailed where she thought that unintended consequences were apparent. The space currently afforded to the Public Protector was narrowed, although this was probably not the intention of Parliament. The PP was mandated to look at “any conduct” and, in order to do so, was dependent on an enabling environment that fostered responsiveness, transparency, administrative justice and fairness in state affairs. Sections 7(4) and 7(5) of the PP Act allowed the PP to subpoena anyone to provide information that the PP deemed necessary to its investigations. No institution was exempt. The PP also had powers of search and seizure, in terms of section 8 of the PP Act, similar to those accorded to the police, with warrants issued by a judge.

Adv Madonsela stressed that any unreasonable or disproportionate restriction or limitation of access to or dissemination of information about wrongdoing in an organ of state would have a serious impact on the ability of the PP to achieve its mandate. She highlighted that some of the powers could be compared to powers of a sword, and others to powers of a shield, but that, currently, the PP did not need to raise defences. However, if clause 43 came into operation, staff at the PP’s office were liable to be prosecuted.

Adv Madonsela felt that the Bill would impact unduly on human rights and good governance. Another of the unintended consequences was that it would restrict the flow of information that promoted good governance. Whilst the intention was legitimate, consideration must be given to whether the restrictions were proportionate, precise enough and whether they aligned with the Constitution. She pointed out that Chapter 9 institutions, most of which were staffed by lawyers, were themselves not certain about the impact of the Bill, so it would be even more unclear to ordinary citizens.

Adv Madonsela noted that rights to freedom of expression and rights to access information were set out in Article 19 of the Universal Declaration on Human Rights, Article 19 of the ICCPR, and Article 9 of the African Charter on Human and People’s rights. Clearly, the state had a right, as well as a responsibility, to restrict information. However, any restriction must be explicitly provided for in the Bill, must pursue a legitimate aim, and should be no more restrictive than required to protect the aim (the proportionality principle). The legislation must also be accessible and formulated with sufficient precision. The Johannesburg Principles (which were formulated already in 1995) emphasised that the least restrictive means possible must be used to address a threat to a legitimate national security interest, and any restriction must be compatible with democratic principles. Vague or broadly defined restrictions went beyond what was strictly required.

She noted that some of the Bill’s provisions were very broad. Bearing in mind that human beings would be attending to classifying and de-classifying documents, it was necessary to set out with absolutely certainty what could be classified. Currently, there had been inappropriate refusals of access to information on the grounds that the information was a matter of national security, despite the fact that the information may not be found in a classified document. It was also possible to have some information that was not appropriate for classification, within a broadly-classified document. The PP should not have to resort to its powers of contempt orders in order to get information. She agreed that a test of the harm caused should also be considered, and noted that the public interest in releasing the information should not be seen as any less important that the public interest in keeping that information secret. She quoted the Constitutional Court, in the matter of Democratic Alliance v President of RSA, who noted that accountability, responsiveness and openness were democratic watchwords.

Ms Madonsela then went into some of the specific provisions that were problematic. Chapter 1 dealt with the scope of the Bill. She suggested that the definition of “national security” must be reviewed, in line with the principle of precision. The comments of the UN Committee dealing with the ICCPR were important, as this Committee had, when dealing with an application by the UK, rejected some of the proposed framework because it offended against the proportionality test. The UN Committee had also recommended that the UK should distinguish between possession of classified information, and active illegal gathering of that information.

Chapter 4 of the Bill purported to protect only classified documents. However, the scope of classification was too broad, since any information could be included these categories. Again, she noted that human beings would classify, and it was necessary to distinguish very clearly between classified information and information that did not need to be protected. The requirement that a person would have to approach the court to have a classification reviewed was contrary to section 237 of the Constitution. The state would not be able to run efficiently if the information could only be obtained by approaching the Court. Although clause 43 did recognise PAIA, PAIA’s effect would not be felt.

Adv Madonsela noted that Chapter 5 left critical details in the discretion of the Minister.

The requirement to review classification at least every ten-years would, in practice, be problematic as it was too long, and most institutions would restrict their reconsideration of classification to a ten-yearly duty, despite the fact that annual reports must be made to Parliament.

Adv Madonsela was also concerned with the wording of clause 12, which imposed a blanket exemption on information related to national security. She felt that this was inappropriate, and was fundamentally inconsistent with the requirements for access to information, both in the Constitution and international law.
She noted the reference, in the previous presentation, to harm and agreed that this was an important point.

Adv Madonsela said that other Chapter 9 institutions had not looked specifically at how the Bill would impact upon them. She noted that this Bill said that if an institution did not grant access to information, the court should be approached. This ignored the fact that a person requiring access to information was also at liberty, currently, to approach the PP or the South African Human Rights Commission (SAHRC). The PP had the power, in terms of PAIA, to resolve disputes relating to access of information, through mediation conciliation and legal recourse, but this was not reflected in this Bill.

Whilst the Bill did say that rights already protected in other laws were recognised, clause 15 said that possession of unlawfully-obtained classified information must be reported to the South African Police Service (SAPS), and that failure to do so would be a criminal offence. The unintended consequence was that this elevated the SAPS above the PP. She pointed out that the PP staff frequently came across classified information, perhaps contained in batches of files. The Bill did not say when the possession must be reported, and she suggested that it would be far too onerous for the staff to check every document received, even before applying their minds to the matters, and return documents. Similar comments applied to a journalist, who could be sanctioned just for being unwittingly in possession of that information, without applying his or her mind to it. Clause 43 was also problematic.

Adv Madonsela said that it was not made clear, in Chapter 7, how the activities of the Panel would be funded. She suggested that it should be accountable to the NA for funding, and not to the Minister of State Security. She emphasised that this law was not being made for the current Minister or government, and that it was necessary to ensure that the bets possible law was passed for the future. A dangerous instrument, even in good hands, was still dangerous. She noted that proposals had been made to create a mechanism to allow members of the public to appeal to the Panel, as an alternate to appealing to the court, once the internal appeal provisions under clause 19 or PAIA had been exhausted.

Adv Madonsela also wished to comment on the offences and penalties in Chapter 11. She urged that the Committee distinguish between a person who actively took steps to procure classified information, and a person who was merely in possession of the information. She also noted concerns with the harsh sentences, giving some comparisons with the Canadian penalties.

Adv Madonsela finally addressed herself to the public interest defence. A distinction must be drawn between the public interest override and the public interest defence. The override would be called into play if information was needed that had been classified. However, a public interest defence was also needed, and at present the Bill merely made a cross reference to the PDA. She stated that in Canada, the Security of Information Act of 1985 allowed a limited public interest defence to public servants who came into contact with information, but would only be used if other methods had been exhausted to deal with the matter.

She noted concerns by Members about information being released, when it was not in fact in the public interest to do so, and said that she did not have a specific answer to that problem, although it may be covered in the guidelines to the Johannesburg Principles and ICCPR. She also stressed that the fact that a public interest defence may be raised did not mean that it would be accepted, and that an objective test of whether something was indeed in the public interest would apply. Release of the information should be the last resort. Internal measures should be included to restrict the abuse of the defence.

The Special Rapporteur on the Declaration of Freedom of Information, passed in 2004, dealt with “safety valves” for whistle-blowers, which were also found in the PDA. Adv Madonsela noted that further consideration on protection of whistle-blowers was needed.

Adv Madonsela summarised that the PP was therefore calling upon Parliament to ensure a balance in protecting the public interest, by securing appropriate categories of state information, and the public’s interest in protecting the right to freedom of expression and other Constitutional imperatives. A balance must be found between sections 16 and 32 of the Constitution. The State's responsibility to regulate and ensure protection of certain kinds of information must be in line with ICCPR. The Bill should be improved by the introduction of a public interest defence, more accuracy, greater proportionality and alignment with existing frameworks, whilst recognition must also be given to the Chapter 9 institutions and their roles.

Ms Boroto said that she was worried about comments as to how this Bill would specifically affect the Chapter 9 institutions. She thought the PP was not subject to the Constitution and the law, and therefore, if information was classified, the PP would surely have to obtain that information according to the Bill. She asked if the PP was exempted from legislation that limited entrenched rights.

Ms Boroto and Ms Ntwanambi asked for further comment also on the concerns around unconstitutionality.

Mr Worth said that reference was made, in the written submission, to the aggravation of existing bottlenecks, and, on page 21, to the necessity for costly legal actions, that the public would not be able to afford. He wondered if the PP would be able to function if this Bill were passed in its present format, since it did receive documents that were classified, and what alternatives might be implemented to assist it.

Mr Mofokeng asked whether the PP had been hindered from functioning effectively, under the 1982 Act.

Adv Madonsela said that Ms Boroto’s question was of concern, since the suggestion that the Chapter 9 institutions should be treated in the same way as ordinary citizens ignored the very reason for their existence, which was to see to non-judicial enforcement of Constitutional rights, and to enforce accountability in a non-judicial way. The PP acted as a buffer between state and citizen. It was clearly not in the same position as the ordinary citizen. She reminded Members that she and her staff were not receiving classified information, or dealing with matters, in their personal capacity, but as staff of the institution set up to strengthen and support democracy. The PP called for information in terms of the Constitution’s Chapter 9, whilst sections 7(4) and (5) of the PP Act empowered it to call for “any type” of relevant information. The courts were an accountability mechanism, but so were the Chapter 9 institutions, and they must therefore be given the same kind of space in which to operate.

Adv Madonsela noted that staff of the PP were not above the law. However, if they acted in good faith, they would be exempted from certain provisions. At the moment, for instance, the PP might come into possession of incorrectly-released classified information, but were not required to hand it over to SAPS, and she did not think it would be appropriate, once the Bill was in force, to require them to do so, nor to criminalise their possession of the documents. If the PP was not given the necessary space, and its powers and mandate were not recognised in the Bill, it would not be able to continue to function effectively. It would be hugely costly and onerous if the PP had to approach the court every time it wished to access a document that may be classified, instead of using its current powers to call for this information. Nowhere else in the world would an ombud have to approach the courts to get access to information in the hands of the state. The PP and ombud bodies were supposed to provide a swifter channel for accountability and remedying injustice on the part of the state.

Ms Ntwanambi queried the suggestion that the new Panel be funded by Parliament, since the Panel would not be Chapter 9 body.

Adv Madonsela agreed, but said that the right to independence was also recognised in the Chapter 10 institutions. Lack of independence in relation to funding created unhealthy dynamics, as there would be unarticulated premises about funding. The International Ombudsman said that one of the founding principles was that funding should come from Parliament and not from an executive organ of state. This proposal was aimed at creating a healthy distance between Minister and Panel. Although the Minister would be involved in appointments, there was little likelihood that s/he would seek to control the Panel – and again she stressed that her remarks were general remarks, directed at future Ministers, not the current administration. If funding were to come from the Minister she did not think this was unconstitutional; the suggestion was made to improve the arms-length independence.

Mr Bloem asked if other Chapter 9 institutions had expressed similar concerns with the current formulation of the Bill.

Adv Madonsela said that the other Chapter 9 institutions had not analysed the Bill specifically, and would need to consider what mischief the Bill sought to address, and how it impacted upon them.

Mr Bloem noted that paragraph 5.1.2 of the written submission suggested that the PP relied extensively on media reports of fraud and corruption and wondered if this Bill, in its present form, would render the PP toothless.

Adv Madonsela said that the PP would not necessarily be rendered toothless but it would be more difficult for it to function effectively. The PP and other Chapter 9 institutions already had problems in getting access to information, although at the moment the PP could request any information from anyone, provided that the information was necessary to determine whether improper conduct occurred. If the Bill were to be passed as currently worded, a state department might claim that the information sought was classified, and that the PP would have to approach the court to get that information. It would be even more difficult for the ordinary citizen to follow this route. At the moment, citizens could approach the PP or the SAHRC for “immediate justice” but if this route were blocked by the Bill it was not only unlikely that the PP could conclude its own investigations on time, but its role on behalf of citizens would be hindered. She hoped that the Bill would address the position where officials attempted to hide behind the classification, and still allow the PP to get information directly, as part of its role in promoting accountability.

The Chairperson noted that one of the submissions on the previous day had made some concrete proposals around exemptions, and wondered if the PP would be prepared to accept that.

Adv Madonsela said that she would prefer that the PP be afforded a status similar to the courts, as set out in clause 12, giving recognition to the Chapter 9 institutions.

Mr J Gunda (Northern Cape, ID) sought clarity on point 6.4 of the written submission, and asked what “delirious unintended consequences” would be He also asked for more clarity on the concerns around the ten-year period for review and declassification.

Adv Madonsela said that point 6.4 was referring to the unintended consequences, as outlined earlier, that could have a negative impact. There was no suggestion that Parliament had deliberately attempted to take away existing rights from the Chapter 9 institutions, but the current wording would in fact result in this.

She noted that organs of state had to update their documents at least every ten years. However, the PP felt that this was too long. She emphasised that this clause related not to documents that would be declassified when a request for access to information was made, but periodical reviews.

Mr Nzimande asked for clarity on the role of the police; he thought it made sense to have to hand in documents to SAPS, as police stations were found in every community. He asked if this clause needed to be amended to cater for the PP’s concerns that it would need to check every document to see if it bore a classified stamp.

Adv Madonsela reiterated that, currently, the PP had no need to return classified information coming into its possession to SAPS, although she would try to return documents to their lawful home. She was hoping to hear the Committee suggest that the PP could retain this, and would not have to return documents to SAPS. She said that both the police and the courts were necessary to ensure democracy, but felt that there was no sense in requiring the PP to follow the same route as ordinary citizens. She also raised a concern that this route might also prove too onerous for ordinary citizens, especially those who were not literate.

Mr Nzimande said, as a follow-up, that he did not agree that this would be onerous. If the PP received information lawfully or rightly, it should not be required to deposit it with SAPS, but if it were to come into possession of the information in another way, it should be deposited with SAPS.

Mr Mofokeng asked similar questions on how the PP would explain how it had acquired information, how the Bill would impact on investigation of improper conduct, and how this would relate to the clause 14 requirements.

Adv Madonsela pointed out that a whistle-blower may simply provide the PP with several files, including some stolen classified documents. The PP currently treated all stolen information as if it had been lawfully obtained, could decide how the information would be handled, and would invariably return the documents to the Inspector General for Intelligence. If the Bill were to be passed as currently worded, her office would spend large amounts of time returning documents to the SAPS. Clause 14 did try to prevent classification for improper purposes but this would not necessarily stop officials from doing so. It was necessary to tighten the provisions.

Mr Nzimande said that the Bill contained references to procedures, regulations, and policies, and thought these might provide sufficient clarity and guidance to those who were tasked with classification.

Adv Madonsela responded that these regulations, procedures and policies may have good intentions, but there was a need to achieve proportionality and alignment in the Bill itself. Definitions must be precise, to limit the abuse of well-intended provisions, and in line with the Johannesburg Principles. Any limitations must be proportionate to the harm that would be caused by the circulation of the information.

Mr Nzimande asked for comment on clause 11, saying that the Register and the requirement for provision of Annual Reports were clearly trying to ensure that information would be more accessible.

Adv Madonsela responded that the breadth of the classification would still make it possible to “hide” behind the fact of classification.

Mr Nzimande commented, in relation to minimum sentences, that even where these were prescribed, he had understood that the courts could still retain a discretion. He asked if the PP was suggesting that all sentences should be removed or reduced, and what this would achieve.

Adv Madonsela agreed with the principle of imposing penalties. However, she said that in Sweden, for instance, no journalist had ever been punished for being in possession of classified information, although the editors could be held accountable. A distinction must be drawn between those actively seeking classified information, and those only in possession of it.

Mr Lees asked for comment on whether the inclusion of valuable information in the Bill was likely to impact on the PP.

Adv Madonsela answered that her written presentation covered these points. The concerns expressed earlier, about restricted access, and the need to balance competing interests, applied equally to valuable information.

Mr Lees noted concerns expressed earlier that information may be wrongly released into the public domain, although it was not in fact in the public interest, and wondered if the inclusion of a public interest defence would increase the likelihood of people releasing information that was not in the public interest, opening the floodgates. It was still possible for people to release the information illegally, and face the consequences.

Adv Madonsela noted that no dire consequences had resulted from the passing of the PDA, since it set out clearly how matters should be handled. The same types of hurdles would be faced in relation to the public interest defence. She understood that there were legitimate concerns, and noted also the suggestions that the PDA be amended to apply beyond employees, for instance to contractors.

The Chairperson asked whether it would be appropriate for a judge to depart from the minimum sentences in this Bill.

Adv Madonsela responded that minimum sentences were always subject to judicial review. Whilst the PP believed that the current sentences were harsh, this did not affect the constitutionality of the Bill, but related rather to good governance. She pointed out that although minimum sentences were provided in the rape legislation, for instance, there were specific provisions that a judge could depart from these for compelling reasons.

The Chairperson questioned the role of the Classification Review Panel, saying that the Bill clearly recognised the need for independence. He commented, in passing, that the requirement for this Panel to report annually to the “National Assembly” would be considered carefully, as this Committee believed that it should also account to the NCOP. If the Panel had to receive information on classification annually, this would be reflected in the report to Parliament. If it was to be funded through the Public Finance Management Act, Parliament would oversee the funding.

Adv Madonsela said that the Panel would have to review and oversee status reviews, and would not do the reviews itself. The head of an organ of state would have to undertake a review of classified information, at least every ten years, but had no obligation to review information before this time (apart from when specific requests for access were made). She noted the difference between review and classification. Some institutions would probably review within a shorter time frame. In respect of the funding, she pointed out that some funded institutions did not enjoy the same impartiality as the Chapter 9 institutions, and some ombud institutions obtained their funding directly from National Treasury. This would not affect the constitutionality of the Bill, but was a matter of good practice.

The Chairperson agreed with the comment that recognition must be given to the Chapter 9 institutions. He was interested to hear the Canadian examples, and wondered if the PP would prefer the Canadian approach to be adopted.

Adv Madonsela said she was not suggesting that South Africa should adopt any other country’s wording, wholesale. There was a need to achieve proportionality. South Africa had a unique situation, but it might achieve an optimal balance by looking at other models to help achieve proportionality and alignment.

Mr Mofokeng made the point that one person’s view on whether a matter was in the public interest may not be shared by another person.

Adv Madonsela stressed that a decision on whether something was in the public interest would never be determined by one person. In terms of Chapter 8 of the Constitution, the courts had to make that call, based on various considerations, which could be set out in the Bill. A public interest override was already included, but a public interest defence was requested, as an additional shield.

Mr Bloem asked if Adv Madonsela believed that this Bill would pass constitutional muster, in its present form.

Adv Madonsela said that she could not pre-empt a court of law’s determination on this point. However, this Committee had the power to avoid the issues coming before a court, by ensuring that legitimate concerns were addressed.

Alternative Information Development Centre (AIDC) submission
Mr Mark Weinberg, Trustee, Alternative Information Development Centre, noted at the outset that he may call for assistance from the Right2Know campaign, in answering questions.

Members discussed whether the two presentations should be combined, but eventually decided that the Right2Know should continue to make a separate presentation on 30 March, and should not be involved in this submission.

Mr Weinberg said that the AIDC was a non-profit trust, formed in 1996, to address new opportunities and challenges to those seeking greater social justice. It recognised that the right to access and share information was fundamental to pursuit of social justice. A responsive and accountable democracy should have as few secrets as possible. It recognised the need to repeal the 1982 and Minimum Information Security Standards (MISS).

Mr Weinberg tabled a slide that described and enumerated multiple crises in the economic, social and ecological fields and said that the state had to govern either by consent, or by force.

Ms Ntwanambi interrupted the presentation to ask why these issues were being outlined, and what relevance they had to the Bill.

The Chairperson agreed that some serious and problematic political statements were being made, and this detracted from a focus on the Bill.

Mr Weinberg explained that he was attempting to set out the socio-economic context behind the Bill and the rise of securocrats.

Mr Chaane thought that these slides could inform the conclusions on the Bill.

Mr Matila suggested that the submission should not raise political points.

Mr Gunda agreed that the main purpose of the debate was to speak to concerns on the Bill.

Mr Lees noted that the written submission followed much the same themes as the oral submission and he said he would be reluctant to require Mr Weinberg to limit himself to commenting only on the Bill, if he had not been asked specifically to restrict himself to this.

The Chairperson noted that other submissions had attempted to extrapolate the most vital issues, but the Committee could not leave some of the serious ideological statements unchallenged, yet did not wish to become embroiled in political debate.

Mr Weinberg reiterated that what he had presented orally was an expansion of concerns in his written submission. The AIDC believed that the broad context must be considered. The Right2Know, on the other hand, would look at the legislation, clause by clause. He suggested that no presumptions would be drawn as to whether the Committee agreed or disagreed with the propositions if it did not challenge them.

The Chairperson asked Mr Weinberg to continue.

Ms Ntwanambi questioned what would be presented.

The Chairperson responded that Mr Weinberg had said that the submission would comprise general comment, and pointed out that two other submissions had also been quite general. The Committee could, at the conclusion, note the submissions, or disassociate itself.

Ms Boroto was also worried about what had been presented so far, noting that the “growing influence of conservative authoritarianism” was probably a matter for debate elsewhere. She would be happy to engage with the Bill, but not engage in political issues.

The Chairperson ruled that Mr Weinberg should continue.

Mr Weinberg continued that the frame of the right to organise, based on freedom of expression, access to informational and freedom of assembly, illustrated a trend to conservative authoritarianism. He said that this was illustrated by a number of pieces of legislation, failure to implement PAIA, murder of whistle-blowers, and this Bill, policy violence and intimidation, denials of permission to gather, introduction of databases of information, the Traditional Courts Bill, and regulation of funding of NGOs. He also indicated that various factions and groups were fighting for influence in the ruling party.

At this point, the Chairperson ruled that increasingly serious, and even offensive, political statements were being put forward, which were not appropriate in this forum. He disallowed the remainder of the presentation.

Higher Education South Africa (HESA) submission
Dr Max Price, Executive Member, Higher Education South Africa, noted that the HESA had considered the Bill, and had then commissioned a joint position paper from Professor Jane Duncan, Africa’s Chair of the Media and Information Society, and Chair of Rhodes Academic Freedom Committee, and Mr Ken Otienao Obura, a PhD student and former employee of the Kenyan Anti-Corruption Committee. Their submission had been fully endorsed by HESA.

Mr Ken Obura said that the right to academic freedom was expressed as one of the rights under section 16 of the Constitution. The Constitutional Court had recognised the link between academic freedom and access to information. HESA accepted that this was not an absolute right, and could be limited under section 36.

HESA had several concerns about the Bill, including the over-broad definitions, the opt-in clause, the powers given to all organs of the state to develop their own classification policies and procedures, and the fact that they were not obliged to provide reasons for classification. Other concerns related to bulk classification, the periods before declassification, prolonged processes required to access information, and the composition and independence of the Panel. It was also concerned with the lack of a public interest and public domain defence, and criminalisation of possession. The definition of “state security matter” was not exhaustive and ran the risk that it would be interpreted over-broadly. Bulk classification provisions were of concern. HESA also made comments on the period of 20 years classification, in light of comparative legislation, and proposed that a 10-year period would be more appropriate. These were explained in detail in the written submission (see attached presentation) but he would focus on three main issues.

Clause 19 of the Bill dealt with the public interest override, and provided that certain, limited matters could be considered within 15 days. Firstly, HESA noted that applications that did not fall under these three categories would merely need to be considered “within a reasonable time”, which was indeterminate. Academic researchers were constrained by time and resources, and undue delays in the process may render it impossible for a researcher to complete research within a defined time frame, and limit academic freedom.

Secondly, HESA submitted that it would be appropriate to broaden the three categories to which the public interest override would apply, to include academic research. The European Court of Human Rights, in the Tarsag case, said that public interest was not restricted only to issues that harmed the public but also to issues that benefited the public, and academic research fell into the latter category.

HESA had concerns around the requirement, in clause 41, that some foreign nationals may need to register. Whilst it accepted that this was reasonable in the case of a foreign national who was already an intelligence operative in another country, or had the expectation of becoming a foreign intelligence agent, it did not believe that it was reasonable to require a person who “had the potential” to be approached to become a foreign intelligence agent to register. There was a fear that this provision could be used to restrict or harass foreign researchers, especially if they were engaging in work that was critical of government, and criminalise them for failing to register. Mr Obura pointed out that during the Cold War, most academics had been targeted by the USA government because they held opposing views to the government of the day. Academics should be allowed to engage freely in exchange programmes, without fear of being subjected to harassment or sanctions, and HESA suggested that al references to potential or expectation should be deleted, so that registration would only be required from those who were existing intelligence agents.

HESA was concerned that clause 44 made it an offence to possess classified information, since academics may come into contact with information that, although it had not been declassified, was already in the public domain, via the internet, archives or other sources. They would be at risk of being prosecuted not only for possession but also for publication when the research was published. Mr Obura submitted that it would be far too onerous to required academics to check the status of every source of information. This could be addressed by introducing a public domain defence.

Professor Jane Duncan reflected on the implications of these clauses for academic freedom, reiterating that academic freedom was specifically protected under the Constitution. She noted that researchers could play a vital role in the security cluster. They could ensure that policies were kept under constant review, ensure that the security cluster was held to account for its actions, assist in analysing deeper processes, as opposed to the event-focused approach of journalists, and assist the cluster to draw lessons from past events, in order to improve. She added that many members of security agencies were studying at university, or serving on HESA, and this Bill would impact on their ability to pursue their studies freely.

HESA accepted the need for the Bill, but was critical of the Bill’s procedures, which remained complex and vague, making it very difficult for researchers to plan their research. The time and costs of confirming whether information was classified, then instituting internal reviews and court applications, were onerous. The appeals and reviews were undertaken by the body classifying the information in the first place. Although a whistle-blower was protected from prosecution, researchers receiving information would be liable to prosecution. Prof Duncan submitted that the only justifiable restriction would relate to operational information whose disclosure would pose a threat to the safety of the citizens and people working in the cluster. However, policy and strategic information did require public debate, as they involved complex trade-offs.

Prof Duncan submitted that the provisions around bulk classification were problematic, as academics would not be able to play their roles. Several universities who offered courses on strategic studies that would be heavily affected by this Bill. There was a danger that teaching and research would become detached from current events. The knowledge on the roles of police, intelligence and military services would become more limited and difficult to access. It would be difficult, for instance, to undertake research into the effects of re-militarisation of the police service, or the transformation of the military, or to assess whether intelligence service were being used to ensure civilian safety, or harass the public.

Universities had a role to play in educating and democratising knowledge, to improve society, and society would suffer if information could not be freely obtained. A secretive security cluster would be dangerous. World history was littered with examples of intelligence, police and military structures who had abused their power where secrecy prevailed. If no information was available, no lessons could be learned by the cluster, and it would be inwardly-focused and out of touch with reality, and may address social problems in an inadequate manner.

HESA recognised that the Bill had already come quite far, but urged that its proposed amendments must be effected. HESA would be keen to explore whether researchers would be permitted to access classified information in some other way than through the procedures currently set out in the Bill and would be happy to engage further and supplement this submission.

Mr Worth referred to page 9 of the written submission, which suggested that the protection of valuable information from loss, destruction and alteration, and the classification of information, were constitutionally defensible. He asked if HESA could comment on the view that because valuable information was mostly held in the archives, and the archives were an exclusive provincial legislative competence, this might be grounds for a constitutional challenge.

Mr Mofokeng asked for an example of strategic matters.

Prof Duncan explained that this might include research into key macro-decisions on the role of the military in relation to peace-keeping on the Continent. The “larger picture” should be freely accessible, and there was no obvious reason why strategic intelligence assessment and priorities of intelligence services should not be in the public domain, because they looked at how intelligence resources were being deployed. That in turn depended upon how the potential threat was rated. On these topics, debate and maximum openness were needed. Clearly, operational information that put strategic and policy decisions into practice should be kept secret, particularly if this related to the safety and intelligence and police sources and their families.

Mr Mofokeng asked what might cause a researcher to seek release of classified information through the Court.

Dr Price said that this would be done if the declassification of information was essential to allow the research to be done.

Mr Obura added that a court could exclude certain information from being heard in open court, but the difficulty was that the court judgment would not be able to make reference to that in the judgment, making it difficult for a researcher to ascertain the reasons behind a decision. Information into court processes; court could apply discretion such as in camera hearings. This was particularly relevant for legal researchers.

Mr Mofokeng commented that a researcher must surely be able to assess when his or her research would have to be completed and make arrangements for access to information within a reasonable time. He did not see how delays would be occasioned by the state.

Ms Boroto said that section 237 of the Constitution spoke of certain constitutional obligations to expedite matters. She noted that clause 19 referred to both a 15 day and 30 day period, and asked if HESA was suggesting that this might be unreasonable.

Mr Obura agreed that a researcher must make application, but noted that, other than in relation to the three limited circumstances set out in clause 19, the Bill merely said that information should be provided in a “reasonable time”, which was not specific, and therefore made it impossible to plan. He suggested that the committee could consider inserting a specific time, such as 30 days, in the Bill.

Mr Nzimande asked that some research was commercially commissioned and believed that a balance would have to be struck in relation to this research. He noted that most research papers had to contain references to all sources, and wondered how this could be done if the information was classified.

The Chairperson noted that students in the USA had confirmed that they were not permitted to do research on state secrets, and why it was suggested that academics could access classified state security information. He pointed out that they would be unable to protect the information if they had to publish their research.

Dr Price agreed, and said that researchers and universities were experienced in doing research that had to be kept secret, such as research into pharmaceuticals, or for Denel and Armscor, so this was not a new idea. There were a number of ways of addressing the need to reference. The research could be published without reference to every source, if it was peer reviewed, or the research could be written without any reference to the classified information, or could also note that the sources were confidential and could not be disclosed. Researchers would apply their minds to how best to deal with the issues. Some research may never come into the public domain, for instance, research commissioned by the intelligence agencies themselves. Another possible safeguard could be to approach the Classification Review Panel. Classified information did not necessarily need to be declassified merely because it had been the subject of research. However he did feel that there should be a mechanism to scrutinise individual applications for access if all information to do with security structures was under a “blanket classification”, as the current wording of the Bill did not allow for this. He emphasised that much of the research would be of benefit to the agencies themselves.

Mr Nzimande asked if the suggestion that researchers should be given other avenues to get classified information implied that they should be exempted from the provisions of the Bill. He pointed out that there were also limitations on the right to access in PAIA.

Mr Obura responded that HESA was not suggesting that information should be given to researchers freely, but was suggesting that the route of access could be shortened, firstly perhaps by including research in the public interest override, or by tightening and lessening time frames. He noted that clause 1(4) had the effect of trumping PAIA, but PAIA would apply to protected information that was not classified.

Prof Duncan added that academics could get into the deeper levels of analysis only if there was a free flow of information, and direct access would assist this. HESA wanted to explore this idea further. One possibility could be to make the Classification Review Panel responsible for reviewing the publishable nature of that research. Another might be to subject researchers to security clearance before they were given access.

Ms Boroto was worried about the way in which academic research was explained, and wondered if HESA was aware of the restricted scope of the Bill.

Ms Boroto and Ms Ntwanambi referred to a comment by Mr Obura that he should close his presentation before he was “accused of being over-broad” and pointed out that this Committee was not attempting to judge anyone, or be judged.

Mr Obura said that this comment was intended rather as a caution to himself.

Ms Ntwanambi asked why foreign intelligence should have a right to criticise government,

Mr Mazosiwe thought it would assist government if foreign agents were managed properly. He questioned why this was a concern for HESA.

Mr Chaane also queried how HESA had reached its conclusions on clause 41, and why parallels were being drawn with academics from foreign jurisdictions. Clause 41 made no mention of foreign students, but only to those employed by, or expecting to be employed as foreign agents. He believed that clauses 41 and 42 must be read together.

Dr Price explained that most universities drew about one third of their postgraduate students from outside the country, and this number may be even higher in fields of strategic studies and international relations, where outside inputs were required. Scientists and researchers did work closely with their own agencies in those foreign countries. Clause 41 required a person to register if employed by a foreign agency. However, it was overly-broad, referring also to people whom the South African government thought might be employed in the future. Many students studying in these fields therefore had the “threat” of registration, and criminalising of the failure to register, hanging over them. They would tend to be reluctant to embark on these studies in South Africa, and this would have negative effects on research in these areas.

Ms Ntwanambi said that matters in public libraries were accessible by all, and asked for further clarity on Mr Obura’s point.

Mr Obura said that the Bill was currently phrased so that a person who, for instance, accessed information left lying in a public library, which was nonetheless classified, would face criminal sanctions. The Bill placed a duty on academics to confirm whether the information was still classified. He urged that the public domain defence be introduced so that once information was effectively compromise by being put in the public domain, the classified status would fall away.

Ms Ntwanambi asked how different academic freedom was from other freedom. The Joint Standing Committee on Intelligence always held its meeting in closed session, not merely because of rules of Parliament. She confirmed that people were afforded space to engage.

Prof Duncan said that academic freedom was protected, as a subsection of freedom of expression. If this right, however, came into conflict with other rights, a balancing exercise would be done to decide which right would prevail. HESA was not suggesting that academic freedom should automatically stand above other rights, but was urging that it be respected in context.

Ms Ntwanambi thought that researchers often were involved in the drafting of Bills and would not be barred from receiving information.

Ms Ntwanambi asked for comment on the fact that state security was not a provincial function.

Mr Mazosiwe asked what the experiences of HESA were currently, and whether that could be compared with what was in the Bill.

Prof Duncan said that the Bill said that, except in cases where the opt-in clause was invoked, the classification would apply to the police, intelligence and military services. Under the Minimum Information Security Standards, a culture of over-classification had arisen. Whilst a “hierarchy” of researchers had grown, whereby some researchers were more easily able to access information than others, especially where there was a relationship of trust, even the most serious researchers found their abilities hampered. At Stellenbosch University, one researcher had even discovered that newspaper articles were being classified, by virtue of bulk classification provisions. Another attempt to undertake research into the prevalence of HIV and AIDS In the military had been blocked, despite the fact that the military was one of the few institutions that tested for HIV and Aids annually, or six monthly, and would thus be able to yield rich data on whether the pandemic was growing or declining. Here, the researcher had to end up plotting trends on death statistics. Researchers had found that the research into the culture of the police, military and intelligence was of particular importance. It would be vital to research whether the re-militarisation of the police had increased police violence, but there were fears that this Bill would add to the difficulties in research. Researchers had noted a particular closing of the research space in police matters, and there was very little access, and therefore no network of researchers, in the intelligence field. Information relating to policy should be freely available and the Bill would be failing South Africa if it did not allow for these documents to come into the public domain – for instance, research into when it might be acceptable to use intrusive methods of surveillance.

Mr Mazosiwe asked to what extent government was likely to regulate under section 36 of the Constitution. Government had to achieve a balance of information.

Mr Bloem asked how this Bill was likely to affect the Human Sciences Research Council.

Mr Bloem commented on page 18 of the written submission, on the opt-in clause, and asked for further clarity on that point. He also wanted clarity on the recommendation on page 27 in relation to the processes of de-classification of documents.

Mr Obura added that the opt-in clause had the potential of abuse, although it was of course recognised that all organs of state had a duty to protect valuable information. The fact that it was left to the discretion of the Minister, without any further specifics, was problematic.

The Chairperson noted that a previous presenter had raised the definition of an organ of state, suggesting that institutions of higher learning could be included in that definition, and therefore seek to classify information, thereby hampering the development of the academic fraternity. He asked if HESA agreed with this, and whether it saw itself as an organ of state who would be able to classify and declassify.

Dr Max Price said that he personally did not subscribe to that view, although he was aware of it, and it was highly unlikely that universities would apply to be covered. Heads of universities were protectors of all the values, including academic freedom, were accountable downwards and upwards, and he had little doubt that a head seeking to classify would be sanctioned and removed.

Prof Duncan then addressed the question whether academics were straying into work that they should not be doing. She asserted that research had many roles to play in society but could also assist Parliament in its oversight and holding the sector to account. It must surely be of interest to Parliament to know what was taking place in the policing culture, subsequent to adoption of the military ranking system. A socially engaged and relevant academia needed to be allowed free and open interaction with the security cluster, provided that it did not compromise national security. She did not feel that academics were overstepping the mark

Mr Mofokeng was perturbed by the comment that classified information may find itself in the public domain, and would therefore be “compromised”. He asked what the consequences of disclosure may be, and what his comment would be if the release of this information led the country into a war.

Mr Obura commented on the public domain defence. Given the technological advances, anything put out on any site would spread immediately. If South African researchers were restricted from accessing information that was already in the public domain, they would be severely disadvantaged in comparison to other academics. Once information was in the public domain, it could not be hidden again. The person who released that information may well be punished.

Mr Chaane took the example of a person wanting to check levels of HIV prevalence, and said that this classification may be desirable.

Prof Duncan said that perhaps HESA and the Committee would have to agree to disagree on this point. HESA stood by its views that research into the security cluster was vital for understanding and assisting the security cluster itself. It would be very difficult to teach without reference to local examples, were the Bill to be passed in its present format, and academics would have to refer to overseas intelligence failures instead of real and present examples. That would impoverish all students, but particularly those who were also serving members of intelligence agencies, and academics would become detached.

Mr Chaane reverted to the question of section 41, and said that he did not know what the specific objections were to registering people were, or may be, foreign agents. The Bill recognised that there were people who had been employed by security services in the past, and may be employed again.

Dr Price said that HESA understood that some people may masquerade as students, who were in reality spies, and HESA felt they should be obliged to register. The same applied to those who had a real expectation of being employed. However, he reiterated that HESA was suggesting that the words “or potential” should be deleted. Anyone with an interest in international studies may have the potential to be recruited, so this clause was overly-broad. He also noted that a person who had criticised a particular regime was at greater risk of being targeted, and this clause would be a catch-all for prosecution of a person who had failed to register, and whom the security services alleged “had the potential” to be recruited by a foreign agency.

Mr Bloem wanted to follow up on declassification of sensitive information, and asked if particular instances should be opened up.

Prof Duncan responded that HESA believed that, as a general rule, it was important that apartheid secrets should come into the public domain, even if they were uncomfortable. Only by understanding the extent of the reach of the security apparatus of the apartheid state could issues be addressed. If the Committee felt that there were compelling grounds for information not to be declassified automatically, then she reiterated that it should be reviewed within the time limits and then decisions whether the information should remain classified could be taken on a case-by-case basis.

The meeting was adjourned.


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