Protection of State Information Bill: hearing Day 4

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

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

The Right to Know (R2K) campaign, a coalition of various groups, had consistently stated certain demands since the start of this campaign. It believed that the Bill should apply only to core security sector bodies, with the scope being limited to strictly defined national security matters, and scientific, technological and economic information being excluded. Classifying officials must provide reasons for classifying. The security agencies should not be exempted from public scrutiny. No penalties for possession of classified information should be applicable to the public, including whistleblowers and journalists, and a public interest defence was needed. An independent body, appointed by Parliament, and not by the Minister of State Security, should be able to review decisions as to what may be kept secret. R2K believed that the Classification Review Panel should be accessible to members of the public, and raised several instances where poor drafting had resulted in possible abuses. Representatives then expanded on these concerns, citing particular objections to clause 3, which gave no opportunity for the public to comment on a request to extend the ambit of the Bill, the circuitous definitions, and the result that a veil of secrecy could be drawn over every aspect of security agency activities. The wording of clause 6(j) appeared to suggest that the overriding principle was one of secrecy. The lack of a requirement that officials provide reasons was challenged, and the wording of clause 12 was problematic as it failed to distinguish adequately between “top secret” and “secret” information. There was no definition of the level of officials able to classify, and the classification by operatives set out no timeframes for confirmation of the classification. No minimum standards for reports were set out. There were concerns that all information classified prior to the Bill coming into force would remain classified, including information classified prior to 1994. The Bill crated a two-tier system where the public could be criminalised for something that was essentially a failing of the intelligence and security services. Specific arguments were also raised in relation to clauses 36, 38, 39, 42 and 49, with suggestions for redrafting. The arguments posed against the inclusion of a public interest defence ignored the fact that other countries did not prosecute the public for possession of information, and like every other submission, this submission urged that a public interest defence was vital. R2K was also concerned with “extraordinarily high penalties” that promoted a culture of fear. The threshold even of the public interest override, taken from Protection of Access to Information Act (PAIA) had been criticised as too high. The Classification Review Panel (the Panel) should provide an avenue of access to the public, most of whom could not afford to approach the court. This Panel, although welcomed in principle, had a number of deficiencies and needed to be truly independent; R2K suggested an appointments process similar to that of the Public Protector. Members noted that in many of the previous submissions, R2K had suggested that it was opposed altogether to the Bill, and were interested in now hearing the more detailed submissions and the confirmation that some form of legislation protecting national security was needed. They pointed out that the Joint Standing Committee on Intelligence (JSCI) conducted oversight over security services, but R2K countered that no information filtered down from this body to the public, and essentially R2K was calling for a balance between national security and access to information. They asked about R2K’s funders and questioned the comments on independence of the Panel.

The South African Catholic Bishops Conference (SACBC) set out five main concerns. It believed that the Bill, in its present form, comprised some Constitutional values, specifically the right to access information, and cautioned that some aspects may allow for maladministration and wrongdoing to be hidden, and inequality between well-placed people who had access to important information, and those who did not. The definition of “national security” was not yet tight enough, and opened the way to inclusion of other aspects. It was concerned about the attempts of clause 1(4) to override PAIA, which it believed was unconstitutional, and proposed that clause 1(4) should be deleted. The possibility of extending the Bill’s reach to other organs of state, in terms of clause 3, was problematic, and the words “on good cause shown” were insufficient. If the Committee were to decide on the retention of clause 3(2)(b), the SACBC suggested that the words “for substantial and compelling reasons, and with reference to specific items or categories” must be substituted. rather than the current weak “on good cause shown”. Clause 13 was also criticised as insufficiently clear because there was no indication of what was meant by “at a sufficiently senior level”, and SACBC felt that classifications should be made only by head or acting head of an organ of state. Clause 14 had good intentions, but the practical problem remained that it would be impossible to know that the authority to classify had been misused, and would be effective only if some other body was able to delve deeper into the reasons behind classification, perhaps an independent review panel or body. SACBC urged that the public interest defence must be included. Although clause 19(3) went some way to recognising a public interest override, it pt the decision in the hands of an official, whereas SACBC suggested it should be up to a court. SACBC stressed that it was highly unlikely that a person acting in good faith would disclose information unless the defence would hold up in court, and it was not correct in principle to withdraw rights because of a risk of abuse by random elements of society. The SACBC believed that the Bill could be improved by the NCOP. It urged, however, that Parliament consider asking the President to exercise his powers in terms of section 79(4) of the Constitution and refer the Bill to the Constitutional Court for a ruling prior to signing it into law. Members expressed their appreciation for a clear and informative presentation.

Ms Mary de Haas, an independent social scientist operating as Violence Monitor, aligned herself with many concerns raised in previous submissions, and set out how this Bill was likely to impact upon her work and on the work of other organisations who monitored and addressed violence, intimidation, and corruption, especially in the police services, which had their own particular problems. She outlined the tendency of many countries to over-classify, and said that this had often been done to hide corruption or misuse of power. The definitions were too broad, and she objected to the use of the words “threat of use and force”, and the inclusion of exposure of economic, scientific or technological information. Any classification needed had to be done judiciously and with sufficient checks and balances. Secrecy about science was particularly inimical, as science thrived on openness. The offences also needed to be worded more carefully. She pointed out that whilst the Bill referred to “foreign states” there could also be threats from foreign multi-national companies. Clause 14(3)(b) was far too wide, and she stated that openness was in fact one of the best safeguards of safety, as Amnesty International had demonstrated. Clause 15 was problematic because of lack of public confidence in the SAPS. Whilst clause 19 aimed to provide an avenue for requesting access to documents, from a practical point of view, fewer organs of state were even bothering to acknowledge, let alone deal with applications. Although at least at the moment there was the ability to pass on information and challenge security structures, this would be halted if the Bill came into operation. These difficulties were also linked to excessively punitive sanctions, and the point was made that the only other country with comparable sanctions was Malaysia, whose example South Africa surely would not wish to emulate, as it was characterised by severe human rights abuses and excessively punitive systems. Overall, the Bill resulted in too much power in too few hands, and the systemic problems of getting real access to information would also need to be addressed. The principle of judicial review must be considered, and the Panel was not seen as sufficiently independent. A public interest defence was needed. Members asked if Ms de Haas was able to comment on other comparative systems.

Meeting report

Protection of State Information Bill: Public hearings day 4
Right2Know (R2K) submission
Mr Nwkame Cedile, Right2Know organiser: Western Cape, said that R2K fully recognised the need to replace the current Protection of Information legislation (the 1982 Act) with new legislation. However, R2K still saw a number of problems with the Bill, in its current form. He noted that the Right2KNow campaign was a coalition of individuals who were opposed to the Bill in its current form, believing that it hindered the free flow of information. The founding statement of the campaign demanded that the Bill be amended to bring it in line with the values of the Constitution and democracy. A right to know meant access to a free flow and sharing of information, in order to deliver the social and economic justice that everyone needed.

He outlined the seven main points of the R2K demands. It believed that the Bill should apply only to core state bodies in the security sector, and the scope of the bill should be limited to strictly defined national security matters. Those who classified should be required to give reasons as to why each document must be classified. Commercial information should be excluded from the ambit of the Bill. The security agencies should not be exempted from public scrutiny. No penalties for possession of classified information should be applicable to ordinary members of society, and neither journalists nor whistleblowers should be criminalised. A public interest defence should be inserted in the Bill in respect of publication of classified documents when there was an overwhelming public interest in knowing the contents. An independent body, appointed by Parliament, and not by the Minister of State Security, should be able to review decisions as to what may be kept secret. He summarised that the R2K believed that the Minister’s role remained a problem. The Classification Review Panel would not be accessible to members of the public. Bad drafting had created the situation where the Bill was open to abuse

Ms Shireen Mukadam,
reasecher..governance and corruption division, institute for security studies,  expanded on the key demands, indicating how these were tied in with the current version of the Bill. In respect of the request that the Bill be limited to strictly defined national security matters, she stated that there were problems with clause 3, particularly since there was no opportunity for public comment if an organ of state requested that it be included in the ambit of the Bill.

She noted that officials should be obliged to give reasons why information was to be kept from public view. The key points set out in clause 41 were to do with secrecy. In general, state bodies entrusted with power should exercise that power only to the extent that it was truly necessary. Over-classification must be avoided.

The definitions were circuitous, as the reference to the protection of exposure of a state security matter, in the definition of national security, created the situation where, if the definitions of state security matter and national security were combined, this unintentionally implied that there should be a veil of secrecy drawn over every aspect of the State Security Agency’s activities. The State Security Agency (SSA) could choose to classify every piece of information with even an indirect reference to itself . The language in clause 6(j) appeared to defeat the interest of a balancing act between access to information and need to classify, and suggested that secrecy was the prevailing intent.

Clauses 1 to 14 provided for the method, classification levels, authority to classify and conditions. Ms Mukadam reiterated that there was nothing in the Bill that required an official to give reasons for making a decision to classify. R2K submitted that they should be required to provide exact reasons, and said this would also protect the official if there was a challenge on the appropriateness of the decision.

Whilst the Bill attempted to provide a distinction between levels of information, in clause 12, there was no practical difference between the “top secret” and “secret” definitions, and R2K was concerned that this would lead to information being classified too easily at the higher level. This also had a bearing on the penalties imposed.

Clauses 13(1) to (4) attempted to ensure that classification decisions were taken at a senior level, but this was not defined. Of greater concern was the fact that “any” police, defence, and intelligence personnel may classify, regardless of levels of seniority, and that this classification would remain in force until confirmed by the head of the organ of state, but no time frames were given.

Although reports on classification were to be made, which seemed to assume that the report must be made public, no minimum standards were laid out as to what should be contained in the report. The Auditor-General had already noted that some reports seemed to contain so little useful information as to not warrant any publicity.

Clause 55(2) was also of concern. It stated that all information previously classified, pre-1994, remained classified. In addition, the same penalties would apply to possession of this type of classified information as to more recently-classified information. At the very list, this clause should exclude all previously-classified information, so that it would be possible to make application to apply for declassification.

Mr Murray Hunter, Coordinator, Right2Know, add that the Minimum Information Security Standards (MISS), which had been followed since 1996, said that many organs of state that were not linked to security services had been classifying information to date, and this would remain classified. He told the Committee that the Department of Higher Education and Training had, in its first year of existence, classified nearly 400 documents, and there was no way of knowing what was the subject of those documents. If the Bill was passed in its current form, there would be exceptionally high penalties for disclosure of any of that information.

Ms Mukadam continued that whilst R2K welcomed the removal of commercial information from the Bill, it was still concerned about the reference to economic, scientific or technological secrets. This could open the door to classification of commercial information. Whilst it was to some extent ameliorated by the safeguard in clause 14(h), this did not include economic information.

Mr Hunter expanded on the R2K’s concern that intelligence agencies should not be exempt from public scrutiny. Whilst the R2K accepted that they may need to be protected against exposure of state security secrets, the protection should be limited. The agencies should remain transparent and accountable, as was reasonable in a democracy. He reiterated that the Bill created the potential for all work of the SSA and its functions to be brought under the purview of national security, and this was further complicated by clause 49. The intention was probably that SSA employees, contractors and sources be prevented from abusing their access to information, but the Bill currently applied to “any person” and created a two-tier system where the SSA was given more protection than any other body, and where the public could be criminalised. Clause 43 gave limited protection to whistleblowers, but there was no such protection in clause 49, and there was a higher penalty for disclosure of this information. This had the effect of creating an additional layer of secrecy, which R2K believed was contrary to the values of the Constitution. R2K urged that no penalties should be imposed in respect of unauthorised disclosure to society at large, but penalties could be imposed upon those who were responsible to keep classified information protected, and failed to do so. The state should therefore protect its secrets at source, rather than criminalising society if the state had failed in that task.

Mr Hunter noted that during numerous interactions, those who supported the current form of the Bill had stated that the demand for a public interest defence was not warranted because it did not apply in other countries. Whether or not this was entirely true, this argument ignored the reality that in these countries members of the public would not be prosecuted for possession, unless they were actively engaged in acts of espionage. He outlined the Wiki-leaks case, and said that the USA was not able to prosecute the millions of people who took possession of the information, through broadcasting or downloading, although the USA was attempting to prosecute the whistleblower himself.

There were further concerns about possession and disclosure being criminalised. Clause 15 outlined that a classified document falling into the wrong hands must be returned to the South African Police Service (SAPS). Clause 44 said that a person failing to do this would be guilty of an offence. Clauses 43 and 49 also related to disclosure of the content of that document. All these clauses used the wording “any person”. He reiterated that it was not the responsibility of ordinary citizens to protect this information, and said that only those with an original duty to protect the information should bear the burden if the duty was breached. Further to this, R2K was deeply concerned with the extraordinarily high penalties, which promoted a culture of fear in which exchanges would be discouraged. Any Bill that sought to protect state information should allow “escape valves” to balance citizens’ rights in the interests of an open and accountable democracy. This would include a public interest defence – particularly because of the way in which the Bill criminalised possession and disclosure, and appropriate access. Whilst he acknowledged the advances in the drafting of the bill in regard to whistleblowers and the limited public interest exception, he said that the concerns about the absence of a public interest defence had been shared by every other commentator during the four days of the public hearings. The proposals ranged from a mirroring of the public interest exception clause, achieving a balance through a revision of the wording of the “harm test”, and a more detailed defence. R2K did not wish to be prescriptive or put forward a specific proposal, but did urge the Committee to work on this matter.

The Open Democracy Advice Centre (ODAC) had raised concerns that the current protection in relation to whistle-blower protection applied only to clause 43, and that it was very limited because it applied only to certain categories, and reversed the onus of proof, forcing the person who called for the protection to prove that the exemption did apply to him or her.

Mr Hunter did not wish to belabour the points about the broad wording of the offences, as it was fully set out in the written submission, as well as raised by a number of other submissions. He noted that the concerns related to clauses 43, 49, 38 and 36. Clauses 36 and 38 and 49 gave no protection to whistleblowers. Furthermore, even when whistleblower recognition was given, he pointed out that the Protected Disclosures Act (PDA) was labour legislation and was never designed for national security information. It would apply only to a person blowing the whistle on his or her own employer, within a public service context. The effect of the Bill was that this person could also put his or her legal adviser, or a person who made copies of documents, at risk of being prosecuted for possession of information.

Mr Hunter then outlined the R2K’s concerns about the links between this Bill and the Protection of Access to Information Act (PAIA). It was not clear why clauses 19, 31 and 32 attempted to duplicate PAIA, which already set out a well-established access and protection regime. The threshold of the public interest override in this Bill and PAIA was too high, as it was limited to substantial contravention of law, or risks to the national security or the environment, and the fact that there would be harm. He noted that the word “and” was used instead of “or”, with the result that an official could only disclose something if the public interest existed in addition to one of the other three grounds listed. This had already been criticised as a weakness in PAIA, and he urged the Committee to apply its mind to this point.

R2K believed that there should be good mechanisms for public access to information. There were concerns around the Classification Review Panel (the Panel), which, as the Bill was currently drafted, would not be accessible to the public. The only recourse that the public currently had, if not receiving satisfaction through administrative channels, was to approach the court. This would be very difficult for most people, for whom the courts were beyond their reach. R2K believed that the Panel should be an alternative to the court appeals and should be available as an independent panel.

Ms Mukadam said that the Minister of State Security was not the appropriate authority to adjudicate classification and declassification decisions in other state departments, as there was likely to be a bias in favour of state secrecy.

The Panel was welcomed, but it had a number of deficiencies, The Minister’s concurrence in the Panel appointments, and regulation of funding suggested that the Panel would not be sufficiently independent. The fact that the Joint Standing Committee on Intelligence (JSCI) in the nomination process and the Minister’s powers in respect of removal of panel members were a further problem to its independence. She suggested that a more appropriate appointment and removal process would be to require a two-thirds majority of votes in the National Assembly, similar to the way in which the Public Protector was appointed.

Mr Hunter outlined some additional concerns with the Bill but made the point that these were not exhaustive. The words “unlawfully and intentionally” were used in relation to the espionage and hostile activities offences clauses 36 and 38. R2K acknowledged that the word “intentionally” was inserted to avoid abuse, but this created unintended consequences as it was in the wrong place, and attached to the communication action, rather than the intention to benefit the foreign state. A whistleblower making a legitimate disclosure had an intention to give out the information, but would not have the intention of benefiting a foreign state, although this might happen. The current wording was ambiguous and failed to recognise that distinction. The clauses drafted to tackle espionage were broad enough to cover legitimate acts of whistle blowing as well. He gave two examples of why there was such concern over this, each illustrating how, in the case of both a private employee and a state employee, the result of the actions may result in that person being charged not, as would be more appropriate, under clause 43 for disclosure, but under the hostile activities clause. This could be avoided by a simple redrafting exercise.

Clause 39, related to harbouring and concealing, was another problem.  This clause used the words “or has reasonable grounds to believe or suspect”, and, as with clauses 36 and 38, were too widely drafted and could criminalise legitimate whistleblowers, as well as their families or anyone coming into contact with a person who may be about to commit an act of whistle blowing.

Mr Hunter stated, in conclusion, that the Bill needed to be reformulated to take society forward. This Bill, in its current form, had several unintended consequences, and an overly-securitised mindset, which meant that it did not achieve a balance. South Africa had a number of progressive laws, including PAIA and PDA, which were aimed at protecting democracy. However, even those hindered at implementation stage. Only 25% of applications lodged under PAIA received any kind of response at all, so the right to access information had yet to be fulfilled in terms of the existing legislation. The PDA was meant to protect rights of whistle-blowers but had not achieved what was intended. Proper consideration had to be given to how to achieve real access to information and take society forward.

Discussion
The Chairperson raised a query what would happen if person A were to allow his friend, person B, to stay in his house, but, on discovering that person B was plotting to overthrow a government, person A did not report this.

Mr Hunter said that the concerns of R2K did not relate to person A intentionally harbouring another person who was intending to commit an offence, as person A could be charged with conspiracy. However, R2K was concerned with the criminalisation of both person A and person B when neither had any intention to commit the offence of espionage or hostile activity.

Mr D Bloem (Free State, COPE) asked who comprised the Right2Know campaign members, and whether this organisation was established only when this Bill was introduced.

Mr Cedile answered that R2K was formed in 2010, after the first set of public hearings, when it seemed that the Bill may be passed soon without the concerns being adequately considered. R2K comprised more than 400 civil society organisations and several thousand individuals. It did not exist prior to his Bill being tabled.

Mr Bloem said that various groups had made their submissions, but most had not presented alternative formulations of clauses.

Mr Hunter responded that R2K was a coalition and what was presented in the written and oral submissions represented the consensus group of concerns. R2K did not want to be prescriptive to the Committee. A number of other organisations had presented some drafts, including South African National Editors Forum, and Legal Resources Centre had offered to assist, as would R2K if asked to do so.

Mr Bloem referred to R2K’s comment that intelligence agencies should not be exempted from public scrutiny. He pointed out that the multi-party Joint Standing Committee on Intelligence (JSCI) was already conducting oversight over security agencies.

Mr Hunter cited a 2009 book entitled, “Well kept Secrets: the Right of Access to Information and the South African Intelligence Services” by Sandi Africa, which said that intelligence services in defence and security had been ambiguous about the extent to which information could be set out. Even where information did not actually threaten security structures, the tendency was to keep it secret. Foundational to the R2K campaigns and points was an understanding that the state did have secrets that genuinely needed to be maintained. However, current intelligence structures did not appear to balance its responsibilities in this regard with the need for accountability. Security structures were currently exempt from the PAIA provisions and did not have to produce annual reports. Professor Jane Duncan, an academic from Rhodes University, had requested copies of operational policies and was denied access to them, despite the fact that they were policies only, and not access to any operational information, that she had sought. She noted that even the Dutch security services, who were known not to be progressive in their practices, nonetheless did have a more progressive approach to providing access to a certain degree of information, which set out the role of national security, how much spending there was, what, in general, the service was doing, what its priorities were, and this information was channelled through Parliament. He made the point that where there was not a free flow of information, there could be no proper oversight. Although there was legislative oversight by the JSCI, the main concern was that this committee met behind closed doors and was not really an oversight body because no information was given from this body to the public. R2K was calling for a balancing act between national security and access to information.

Mr Bloem asked how R2K suggested that transparency be balanced against the need for secrecy.

Mr T Chaane (Northern Cape, ANC) said that this was the first time that he had heard clearly what R2K was calling for. He felt that some distorted information had been presented up to now, including in the public hearings, that had confused the public. Initially, R2K had called for an outright rejection of the Bill. Today, he had heard that R2K was opposed to the Bill in its current form, and had recognised the need for the state to protect and manage some information. Mr Chaane said that R2K needed to address the incorrect public perceptions that it had, intentionally or unintentionally, caused. Many of the areas raised had echoed other concerns.

Mr A Matila (Gauteng, ANC) noted that this was quite a clear shift from what had been presented at the public hearings in George. He too felt that the nation had been misled. He asked Mr Murray why he had said something different at the hearings in George.

The Chairperson stopped the comments, saying that this was not a tribunal. What the R2K had said in George had no bearing on what was being presented now, but related to something happening outside of this meeting. The presentation had been taken, and questions of clarity should be asked, relating to what was presented today. Any engagement at a political level could take place in another forum.

Mr Chaane wished to comment on the Chairperson's reference to anything that happened outside this meeting, pointing out that the hearings in George formed part of the public hearings of Parliament on this Bill.

The Chairperson took that point. However, the R2K's earlier presentations were part of the external public hearings process, and some negative comments may have been made there. This presentation was part of the internal public hearing process. R2K was entitled to change its attitude or its emphasis. The clarity given today was appreciated, and he would now be in a position to state, if asked, exactly what the comments and concerns of the R2K were.

Mr Murray said that R2K had set out, from the beginning of the process, the seven points that were outlined at the start of the presentation. There was no shift from the original statements published in August. The position on the details and clauses of the Bill had obviously changed, as the proposed wording had changed. He emphasised that the R2K rejected the Bill in its current form  and would reject any legislation that did not address the seven concerns it had outlined, because it believed that it would restrict access to information, and this continued to be the position.

Ms Ntwanambi asked about the relationship of the R2K with the Department of Justice.

Mr Murray said that this was communicated during the hearings at George. One of the funders of R2K was the Foundation for Human Rights, who had made a grant in the past year. This Foundation in turn received some funding through the Department of Justice.

Mr D Worth (Free State, DA) said that reference had been made to PAIA, but he noted that only about 25% of applications under that Act received a positive response. For this reason, he wondered whether it would be useful for PAIA processes to continue to be used.

The Chairperson quipped that he had always wanted to know the relationship between the DA and the R2K.

The Chairperson referred to the comments on independence of the Panel. He said that the Bill set out the fact that the appointments were to be made through public nominations and a participatory process, that the Panel would comprise experts in the field, and it would be accountable to Parliament. He thought that this would have been sufficient to place it at arms length. If its funding were to come through Parliament, then the Panel would be accountable to the people of the Republic, and not to anyone else. He took the points about access by the public, but asked why R2K believed that the Panel would not be independent.

Mr Hunter responded that the current wording of the Bill did suggest that Parliament had a role, but the Panel was still seen almost as a subjunct of the Ministry and SSA. The Ministry paid the salaries, budgets, set regulations for the panel, and, although the recommendations of the JSCI were to be followed in relation to appointments and dismissals, the Ministry still technically attended to the appointments and suspensions. He suggested that the Panel should not be connected to the SSA or Ministry at all, and should be truly independent.

The Chairperson noted that the opening remarks of R2K recognised the state's ability to classify security secrets. However, it had also said that the public must be allowed to comment on matters of secrecy. The question was really how this had to be balanced.

South African Catholic Bishops Conference (SACBC) submission
Adv Mike Pothier, Parliamentary Office, South African Catholic Bishops Conference, noted that the SACBC had not often appeared before the NCOP, although it had appeared several times before the National Assembly (NA) since its formation in 1997. The SACBC expressed the views of the Catholic Church and wished to offer its perspective of the values that were based on the gospels, and its insight to Parliament and government.

Bishop Steven Brislin, Archbishop of Cape Town, said that the Catholic Church had concerns on some aspects of the Bill, because it feared that, in its present form, it compromised some essential values. The Constitution spoke of dignity, equality and freedom and the SACBC took these very seriously, in common with the whole of the faith community. He set out the belief that sacred freedoms had been granted. The right to information was a vital part of the core values. If information was unduly withheld, people did not have the freedom that was needed to exercise their rights, and if some people were unable to exercise their rights, then a situation of inequality would arise. He cited an example of a citizen who was unable to access information on housing waiting lists, or access information about possible corruption, and said that in this instance the citizen's dignity was undermined by officials who suggested that they should decide what was appropriate for citizens to know or not.

Some aspects of the Bill allowed too much to be hidden from the public. It was feared that the current wording may allow for corruption and maladministration to be covered up, and could create inequality between well-placed people who had access to important information, and those who did not. The Church placed value on these core values and was concerned when they were challenged.

Adv Pothier said that the SACBC had been following the process of the legislation since 2008, and had been impressed by the engagement in the NA Committee, and the significant compromises reached by all parties, as well as the way in which Parliament had engaged with civil society. SACBC had great faith that the NCOP would do the same, attempt to improve the Bill further and allow everyone to contribute to the best of their ability, and that an excellent Bill would be the final result.

Adv Pothier noted that a number of commentators had suggested that this Bill would take South Africa back to the “dark days of its history”. This was a serious exaggeration and was really not helpful. The Constitution, the courts and civil society in the present South Africa were all robust, as proven by this process. Whilst the public must certainly be alert to signs that threatened core values, they should not be over-stated and it was wrong to suggest that the situation in 2012 was anything akin to that of the apartheid days, especially the 1980s, during the state of emergency. Such exaggerated claims led to hardening of attitudes and over-politicisation of some of the important issues and this did not help a compromise but led to defensive attitudes. He was pleased to hear the comments of Adv George Bizos, on the previous day, that it made little sense to try to draw comparisons with previous legislation.

Having said that, the SACBC believed that some areas of the Bill did threaten Constitutional values. He would concentrate on five main points, but other points were detailed in the written submission (see attached document). Firstly, he stated that the definition of “national security” was an improvement on the original wording, but was not good enough yet, as it opened the way for organs of state to add other threats, because of the use of the word “includes”. SACBC thought that the definition should rather be reworded as “National security means…” to prevent unwarranted additions to the list.

There had been concerns consistently expressed with clause 1(4), dealing with conflict of laws, and SACBC aligned itself with these concerns. PAIA was, by its very nature, superior to other legislation because it was one of the three acts passed to give effect to Constitutional rights, and therefore had greater weight than other pieces of legislation. If this Bill attempted to override or stand superior to PAIA, it was therefore attempting to stand superior to section 32 of the Constitution, but could not do that. SACBC believed that the Constitutional Court would overrule this clause, as it stood at the moment, and therefore proposed that clause 1(4) should be deleted. There were already some strong provisions in PAIA for protection of classified information, as well as safeguards, and felt that nothing additional was needed in this Bill.

Clause 3 dealt with the application of the Bill, stating that although it primarily applied to the police, intelligence and defence agencies of the country, there was the possibility of extending this to other organs of state. An extension should only be allowed in the most extraordinary circumstances, and the SACBC felt that the words “on good cause shown” were sufficiently strong. Furthermore, the SACBC believed that only the head of an organ of state should be able to make application, and therefore “or any part thereof” should also be deleted. An application to extend the application of the Bill should occur only at the highest level and after careful exercise of discretion by the political head, and on application by the head of the organ of state, not other levels. SACBC also said that classification provisions should apply only to specified items or categories and should not be delegated in their entirety to other organs of state. A municipality wanting to classify information should be able to show, at the beginning of the application, that the information did fall within one of the categories. He noted that there should be limitations on the power to classify. The Legal Resources Centre had suggested that clause 3(2)(b) should be deleted, and the SACBC agreed in principle with the deletion of the current wording, although it did recognise that there could be extraordinary circumstances where an organ of state other than intelligence and security agencies may have a need to classify. SACBC had suggested some proposed wording, as set out in the written submission, which called for the inclusion of words such a “for substantial and compelling reasons, and with reference to specific items or categories” rather than the current weak “on good cause shown”. The phrase “substantial and compelling” had a particular legal meaning, and was already used in clause 36 of the Bill (in relation to the deviation from the minimum sentencing provisions). This wording had been had been introduced in the minimum sentence legislation, and there was a body of jurisprudence to explain what that phrase meant, which essentially noted that it went far further than merely reasonable circumstances.

Clause 13 referred to officials “at a sufficiently senior level”. This wording did not contain any specifics about the employment grade of the official, or the level of responsibility of the official, to whether that official had security clearance, or the length of service, and it was unclear what this meant. A Minister wanting to make a delegation would also not be able to determine the meaning of the clause, and he pointed out that uncertainty in law was always problematic. The SACBC felt that, outside of the security services, this decision should only be made by the head or acting head of the organ of state, without any further downward delegation.

Clause 14 attempted to ensure that classification was not misused to cover up other crimes. It was wide-ranging and thorough in the way that it was worded, but the practical problem remained that it would be well-nigh impossible for anyone to know that the authority to classify had been misused. It might well be that an official simply decided to ignore clause 13, because s/he stood to gain too much from improper classification, or if there was political pressure. Nobody would be able to know what had been done. If another official or journalist or member of a civil society organisation thought that something had been hidden, that person could still not gain any access, because once the information was classified, the Bill actually defeated any attempt to look any deeper into matters. Clause 14 would only work if people other than those doing the classification were able to ask questions and investigate, and able to disclose if they seriously believed that something had been wrongly classified. Those people might be members of an independent review panel, or members of society, the Public Protector, Minister of Public Service and Administration, or anyone else having a serious reason to believe that things had been wrongly classified. If there was good reason, there should be also the ability to disclose.

This led on to the public interest defence, which SACBC believed should be included. Clause 19(3) recognised the importance of a public interest override, as one of the criteria for declassification. In other areas, public interest stood as a powerful force for openness – for instance, in the law of defamation, where a disclosure would not attract sanction if it was both true, and in the public interest. The difficulty with clause 19(3) was that it put the decision whether disclosure would be in the public interest into the hands of an official. SACBC thought that this decision should be taken by a court, because it was objective, operated in public, heard argument from both sides, and was very different from an arbitrary or capricious decision of a public servant. It had been argued that the idea of a public interest defence was problematic, because it impacted upon the secrecy provisions, and if someone disclosed the information, seeking to rely on the defence, in circumstances that were not justified, the harm in disclosing the information would already have been done. This was a valid argument, but it did not take into account that a person acting in good faith would disclose only if s/he was satisfied that the information was in the public interest, and was confident that the defence would hold up in court. S/he would not take lightly the risk of being jailed. Spies would not be interested in the public interest, but the ordinary honest citizen, including journalists, would weigh up the options carefully. Some commentators had also expressed the fear that if this defence were inserted, it could be misused. That might happen, but exactly the same was true of other rights and entitlements, such as freedom of speech, or right of assembly, and in the past there had never been attempts to withdraw those rights. It was correct to punish the abusers of the rights, but not to withdraw everyone's right on the risk of abuse, and this was essentially what the lack of a public interest defence was doing.

Adv Pothier reiterated that the SABCB did not deny that the state had a legitimate need and duty to protect certain rights and information. However, it was concerned with excessive secrecy, and felt that the Bill needed to be tightened, limited, and polished. The NCOP had the opportunity to take the Bill further, to become a serviceable piece of legislation.

Adv Pothier noted COSATU’s comment, on the previous day, that it would certainly approach the Constitutional Court if the Bill were to be passed in its current form. On the previous day, COSATU had said that it would approach the Constitutional Court if it went through in its present form. He suggested that it might be more appropriate for Parliament to request the President to exercise his powers in terms of section 79(4) of the Constitution, and refer the matter to the Constitutional Court for a decision before signing the Bill into law. A small number of drafters, advisers from the intelligence community, and some ANC members had expressed their view that the Bill was compliant with the Constitution, but the fact that a number of other lawyers and academics and the public had expressed strong reservations on that point was illustrative of doubt on that point. The Chief State Law Adviser had admitted to some doubt. He suggested that rather than Parliament again facing the embarrassment of having a Constitutional Court ruling against it, and having to re-draft the whole or a part of the Bill again, it would be preferable to get a ruling in advance.

Discussion
Mr J Gunda (Northern Cape, ID) and Mr Bloem commended the SABCB for a straightforward and clear presentation and the advice given.

The Chairperson stated that Members understood the Constitution, and appreciated the reminder about the Constitutional provisions that could be used to deal with the issues.

Violence Monitor submission
Ms Mary de Haas, Human Rights Defender, Violence Monitor, noted that she was making the submission in her capacity as a social scientist and human rights defender, and that she had no political party affiliations. She aligned herself with many of the points and concerns raised by Adv Pothier. Her submission was informed by the work she did on a day-to-day basis in KwaZulu Natal, which had its own unique historical problems, but also shared many issues of other provinces.

Ms de Haas noted that every human being tended to behave in similar ways, although power relationships, structures and institutions shaped the precise nuances. She was concerned that in some ways, the Bill breached international norms relating to access to information and human rights, and suggested that it impacted on the public’s right to know about violence, which could lead to continuation of that violence. She also raised concerns about overly-broad provisions, inadequate review provisions, excessive penalties and lack of a public interest defence, as outlined in  more detail in the written submission.

Ms de Haas said that international perspectives on classification, and over-classification in particular, were helpful. Whilst clause 14 set out some good intentions, the experience, even in well-established democracies, was that there was often a tendency to gross over-classification in government bureaucracies, and some of this was aimed at covering up wrongdoing in government. She reiterated that this resulted from humans engaging in human behaviour. The United Kingdom showed several serious leaks of documents, including those to do with the Iraqi war, and in one instance, two people were tried and convicted for leaking a memorandum between then-Presidents Bush and Blair, including an intention to bomb, which would have been a war crime, and the MI5’s complicity in the cruel treatment meted out to Mohamed in Pakistan. There were attempts to prevent release of documentation, partially to cover up wrongdoing. The courts commented that dubious practices had been uncovered. In the USA, there were also various leaks, including the 1971 leaks of Vietnam reports (the Pentagon Papers), which were declared not to be worthy of protection because they related to American policy in Vietnam and revealed a serious of lies to the public. A commission investigating the 9/11 disaster claimed that about 75% of the documents should never have been classified. The European Court of Human Rights (ECHR) had been highly critical of over-classification, including classification of documents in armed conflict matters. In many of these cases there had been  violations of basic rights. Both USA and the UK had tightened up their security legislation since 9/11, despite the fact that this was vigorously fought by human rights defenders.

In June 2001, a media release by the then Minister claimed that there were no discernible threats to the Constitutional order in South Africa, although just a few months later, the Minister admitted that foreign spies were infiltrating the country. The Johannesburg Principles made it clear that citizens were entitled to know what the threats to national security were. South Africa, in contract to USA and UK, was a newly democratic country and the democracy had to be built and defended. There were problems with the bureaucracy. In the late 1990s there had been misuse of processes to put people in the wrong positions and there were factions within departments

Ms de Haas noted that she found the definition of “national security” problematic, in particular saying that the use of the words “threat of use and force” were too broad. The definition had to be clear and unambiguous. The inclusion of exposure of economic, scientific or technological information was far too broad. She stressed that she did see a need for classification, but this should be done judiciously and with sufficient checks and balances. She understood that there had to be a degree of secrecy, but that it must be known where to stop. Secrecy about science was particularly inimical, as science thrived on openness and she urged that the mistakes of the past, where there had been abuses of science and human science, should not be repeated. She did not understand why those responsible, such as Wouter Basson, had not been dealt with swiftly.

Ms de Haas noted that the Bill seemed to show almost an “obsession” with foreign states, but felt that the offences should be stated far more narrowly. She reminded the Committee that many multi-national corporations were probably more powerful than states, and they too were capable of benefiting from insufficient controls, for instance by importation of human tissue in complicity with a researcher. The reference to international interests was, in her view, akin to a new form of bio-colonialism.

She described clause 14(3)(b) as “mind-boggling” and said that protection personnel were placed everywhere, and she feared that taxpayers would have their questions countered with the response that the matters related to national security. Whilst clause 14(3)(f) looked good, on the surface, she said that openness was one of the best safeguards for security, as proven by Amnesty International, who published threats of harm in explicit terms to make those issuing the threats cautious of continuing.

She had problems with the wording of clause 15, saying that there was public lack of confidence in the SAPS.

Ms de Haas also noted that it was possible to use clause 19 to request access to documents, after returning them. However, from a practical point of view, in her own work, she had noted that there were fewer and fewer responses to requests to officials, including even acknowledgements of receipt of the request. She noted that she had had several experiences where registered letters were not even collected by the Department of Rural Development and Land Reform. The practicalities of implementation had to be considered.

Ms de Haas then described how the Bill would impact upon her own work in monitoring violence, and attempting to assist those who had been threatened with or had violence used against them. She accepted that SAPS played a key role in the criminal justice sector, yet there were problems with that sector, with some very serious ones apparent in KwaZulu Natal. Here, SAPS was highly politicised because of geographic positions, and divisions between the former and current incumbents remained. She described instances where, in local government elections, the handlers of an IFP warlord were harassing an ANC candidate, whilst other activists claimed that they were being harassed by another faction within the party because they were trying to expose corruption. SAPS officials seemed to have become increasingly abusive, and in cases where abuses were reported, the ID parades to identify the suspects were simply not held. Some of those abused ended up in hiding. Police consistently failed to follow up on complaints. Truckloads of weapons from Vlakplaas, which were described as “sufficient to start a civil war” were brought in, yet the warlords were neither charged nor their activities stopped. Paramilitary training was being carried out.

Mr Matila interrupted and raised a point of order, suggesting that in view of the shortage of time, the instances should not be set out in detail, but that Ms de Haas should move on to specific comments on the Bill.

Ms De Haas said that the context was important, since all the information she was setting out would be classified, if the Bill were to be passed in its current form, and she would not be in a position to follow up on any of the matters. Currently, she was able to pass the complaints on to the SAPS and to other people, as part of her advocacy role, but would be hindered from doing so, and everyone working in a human rights field would be similarly affected. She noted that this did not relate only to the provincial level, as there was  ineffective management.

Ms M Boroto (Mpumalanga, ANC) said that whilst she appreciated there were problems in the province, this Committee had no power of oversight over the police.

The Chairperson thought that perhaps the comments of Ms de Haas were linked to public interest override.

Ms de Haas confirmed that this was the purpose of her points.

The Chairperson said that Members realised her frustrations, a point also made by the Public Protector

Ms N Ntwanambi (Western Cape, ANC) suggested that perhaps the points should be followed up with the Independent Complaints Directorate and Civilian Secretariat of Police.

Ms de Haas said that her comments about the difficulties were linked to the penalty clauses. She and others would have no way of knowing what information had been classified, and for what reasons. The sanctions ranged from five years imprisonment for disclosure, up to 25 years for espionage, and these were regarded as excessively punitive and disproportionate, pointing out that they also offended against principle 24 of the Johannesburg Principles, which stated that sanctions should not be disproportionate. International law experts, and those from South Africa, had dealt in some detail with the fact that there was a need to be specific when describing the offences, and the burden of proof should rest upon government to state how, and why, harm was done.

Ms de Haas briefly outlined the Canadian legislation, saying that there were nuances here that could be useful for this Committee. She urged a better distinction between espionage and merely possessing information, particularly when that information related to abuses of human rights or corruption. The wording of “may benefit a foreign government” was too vague and did not take into account foreign companies. She pointed out that the Canadian legislation gave maximum, not minimum penalties, and there was a public interest override. There was a massive campaign to introduce a public interest defence in the UK, but even here, the maximum penalty for breaching the Official Secrets Act was 14 years. Those who leaked information about the Bush /Blair meeting referred to earlier had been sentenced to six months and three months respectively. The only country with sanctions similar to those in this Bill was Malaysia, and that country was hardly one to emulate, since it had a highly punitive justice system, including detention without trial, press restrictions, corporal punishment and the death penalty. She noted the importance of comparative research

Ms de Haas concluded that, from a comparative social science perspective, this Bill resulted in too much power being held in too few hands. Even the pre-colonial society, with the chiefs at the head, had checks and balances on the power of the traditional leaders, but this was upset with the advent of colonialism. The wording needed to be considerably tightened, including the definitions. The practical problems that she had described were partially systemic, and even if the Bill were to be improved there was also a need to ensure that, in practice, it would be workable. The Bill contained inadequate controls. Despite the fact that there was an independent Panel, it was appointed by and responsible to Parliament and in reality one party in Parliament would have greater weight than others, so the principle of judicial review had to be considered, to increase its independence. A public interest defence was needed, as she believed that the fear of being charged may, just as under the 1980s emergency regulations, persuade the media not to report as they should. Many people were not aware of how the state was sponsoring violence. Openness was vital in addressing violence, and protection should be achieved by not stifling information.

Discussion
Mr Chaane appreciated the comparative cases. He urged that Ms de Haas, in addition to reporting the matters she had outlined with SAPS, should also convey them to the Civilian Secretariat of Police. Members of Parliament would also be in a position to follow up on mattes, particularly in relation to people who were trying to rectify instances of corruption in their own communities.

Mr Bloem asked for clarity on Ms de Haas’s statement that the Bill was problematic, saying that some other commentators had said that they did not have a problem in principle with the Bill but believed that it could be improved.

Ms de Haas said that she believed that there should be maximum openness, balanced against the need to protect matters of state security. However, this Bill currently opened the floodgates for maximum classification. She believed strongly that freedom of information was crucial to protect people. The apartheid regime had penalised journalists for reporting outside certain conditions, and had intimidated those who sought to tell the truth, and although she stressed that this regime was very different, the effect of this Bill could be to achieve the same fears and concealment of the truth.

The Chairperson said that the Public Protector had made reference to a Swedish system, and he wondered if Ms de Haas could comment on this.

Ms de Haas said that she had not had the opportunity to do very detailed comparative research and did not have enough details on this system to comment.

The Chairperson thanked all political parties for releasing Members to work on this Bill during the constituency period, and Members for their dedication in ensuring that there was meaningful dialogue.

The meeting was adjourned.

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