Protection of State Information Bill: some ANC proposals
Ad Hoc Committee on Protection of State Information Bill (NCOP)
29 August 2012
Chairperson: Mr R Tau (ANC, North West)
At the start of the meeting, Members expressed their concerns that the Right2Know campaign had held a prayer meeting outside the meeting venue, but within Parliamentary precincts, as well as concerns that they had entered the venue with lit candles. The Chairperson appealed to them not to hold this type of gathering again, emphasizing that there was no problem with the beliefs, but with how they were being exercised, and calling for respect of everyone’s beliefs as well as the rules of Parliament.
The Chief Whip of the NCOP had called all the parties to meetings, and on many issues there was now consensus. The ANC representative read out the ANC’s proposals. In relation to the offences, the ANC proposed that the phrase “ought reasonably to have known” should be deleted, except in relation to espionage offences set out in clause 36. This phrase would be further clarified by inserting a definition for it. The ANC proposed that clause 1(4) be amended by the deletion of the phrase “and despite section 5 of the Promotion of Access to Information Act”, which it believed would address the concerns about possible conflicts between the two pieces of legislation. The ANC felt that municipalities should be excluded from the Bill. Clause 3(2) should be reworded to specifically make the Bill apply to Cabinet, as well as the security services of the Republic and the oversight bodies referred to in Chapter 11 of the Constitution”, but additional wording “excluding all municipalities and all municipal entities” would be added to clause 3(2)(b). A list of criteria for the “good cause” mentioned in clause 3 would be provided. In answer to concerns around the lack of a public interest defence, the ANC, with the agreement also of other parties, suggested that the heading of clause 43 be changed to “Disclosure and possession of classified information”. The introductory wording of that clause should be amended to read ”Any person who unlawfully and intentionally discloses classified state information, in contravention of this Act, is guilty of an offence and liable to a fine or imprisonment, except where such disclosure or possession is …”. Subclause (a) would remain the same, but the following wording would be: “or (b) is authorised by an internal mechanism as may be provided for, by the Minister, in regulations, or (c) reveals criminal activity, including activity for ulterior purposes listed in sections 14 and 47 of this Act”. It was suggested that clause 49, relating to the prohibition of disclosure of a state security matter, should be deleted altogether. The ANC did not agreed with the DA that all references to valuable information be deleted from the Bill. The Preamble must also be amplified to emphasise that the “right of access to information is the lifeblood, cornerstone, pillar or foundation of our democracy”, and the phrase “for reasons of national security” in the third paragraph would be changed to “by reason of national security”.
Other parties noted that there had been constructive engagement but that there remained some matters to be debated. The COPE representative questioned why no mention was made of the fact that minimum sentences should be deleted altogether. A DA representative said that further discussion and the response of the ANC was needed on the opt-in clause, the classification authority for South African Police Service and some other matters. The ID asked to get the ANC’s written document, and IFP indicated its agreement with the ANC proposals. Members were happy to continue to negotiate and debate outside of the meeting, as well as debate issues in full Committee, and it was agreed that the ANC would provide its document to the other parties, as well as to the State Law Advisors. The State Law Advisors were asked to start drafting a new working document, incorporating those issues already agreed, and flagging those where there were more than one proposal, as the basis for continued deliberations.
Protection of State Information Bill: Further deliberations
Mr D Bloem (COPE) wanted to raise a point of order about the prayer meeting that had just been held outside the meeting room by members of the Right2Know (R2K) campaign. Although anyone was permitted to demonstrate, they could not do so within Parliamentary precincts, and the rules of Parliament prevented people from entering a building with naked flames. He asked that the Right2Know (R2K) campaign members, who were holding candles, should extinguish them.
Mr A Matila (ANC, Gauteng) agreed, and said that he regarded the gathering as “barbaric” if it was being disrespectful to Parliament. Some of those demonstrating were not South African and he did not wish them to undermine South Africa.
A member of R2K requested the right to speak but was told that he may not participate in the formal sitting.
Mr J Gunda (ID, Northern Cape) pointed out that he too was a pastor, and objected to the insinuations that government was ungodly. Everybody had the right to practice a religion but he felt that advantage was being taken.
The Chairperson noted that this kind of gathering, in this form, should not be allowed again. The problem lay not with the beliefs, but how they were being exercised. He appealed to everyone in the meeting to respect the workings of this Committee and keep the activities to their proper place. Quite apart from anything else, there were problems in carrying lit candles into Parliament. He also objected to the insinuation that the Committee was so evil that mass prayer was warranted prior to the meeting starting. He noted that all religions needed to be respected, and urged that there should not be imposition of one set of beliefs on others.
The Chairperson summarised that at the last meeting, the Committee had received responses from the Department of State Security, and the Committee had agreed to debate those issues on which further clarity was needed. It was also agreed that political parties, in the meantime, would engage with each other and attempt to reach agreement, when they could. Apparently there had been constructive engagements, and he looked forward to hearing from the parties.
Mr S Mazosiwe (ANC, Eastern Cape) suggested that each party should present its views in turn. He confirmed that the Chief Whip of the NCOP had arranged meetings with various parties, and there was agreement on many of the amendments. Parties appreciated the leadership shown by the ANC, and recognised some good points raised by the public. The DA agreed to submit a document setting out some issues for further consideration by the ANC, particularly with regard to “valuable information”, the reference to the Promotion of Access to Information Act (PAIA), the term “ought reasonably to have known”, the delegation of authority to classify and references to municipalities. He would detail these later.
Mr Mazosiwe said that the ANC had proposed that, in relation to the offences, the phrase “ought reasonably to have known” should be deleted, except in relation to espionage offences set out in clause 36. In addition, a definition was needed for this, which would clarify that, for the purposes of the Bill, a person could either have actual knowledge, or it would be imputed to him if the court was satisfied that a reasonable person, in the same circumstances, would have believed there was a reasonable possibility of something, yet failed to take steps to confirm it. He emphasised again that this would apply only to the espionage offences.
The public submissions had raised concerns with clause 1(4) and the ANC now suggested that the phrase “and despite section 5 of the Promotion of Access to Information Act” was to be removed, which he believed would address the concerns about possible conflicts between the two pieces of legislation.
Mr Mazosiwe reminded Members that some submissions had suggested that municipalities should be excluded from the ambit of the Bill. The ANC agreed with this, and suggested changes to clause 3. It proposed that subclause (1) remain the same, but that clause 3(2) be reworded to state: “The classification, reclassification and declassificaion provisions of this Act apply to Cabinet, the security services of the Republic, and the oversight bodies referred to in Chapter 11 of the Constitution”. No reference had been made, in the original Bill, to Cabinet, but it was important that its information remain classified. In clause 3(2)(b), at the end of the sentence, there would be addition of the words “excluding all municipalities and all municipal entities”.
The ANC wanted to clarify also the criteria for the “good cause” as mentioned in clause 3, and Mr Mazosiwe read out a list of the likely factors that would need to be taken into account. He did not state where this would be inserted.
There had been numerous concerns about the lack of a public interest defence clause. The ANC, with the agreement of other parties, had suggested some amendments to clause 43. The heading should be amended to “Disclosure and possession of classified information”. The clause should then read:
”Any person who unlawfully and intentionally discloses classified state information, in contravention of this Act, is guilty of an offence and liable to a fine or imprisonment, except where such disclosure or possession is …” and then would follow the wording set out at the moment under (a), followed by “or (b) is authorised by an internal mechanism as may be provided for, by the Minister, in regulations, or (c) reveals criminal activity, including activity for ulterior purposes listed in sections 14 and 47 of this Act”. Mr Mazosiwe thought this was a major step forward, that took into account the concerns of the public and Committee, and that would ensure that democracy prevailed.
It was suggested that clause 49, relating to the prohibition of disclosure of a state security matter, should be deleted altogether.
Mr Mazosiwe noted that the DA, and some of the submissions, had spoken to whether valuable information had a place in the Bill, but said that the ANC believed that the State did have an obligation to protect valuable information, as set out in the Bill.
He emphasised that, overall, the Committee must ensure that the Bill was in conformity with democratic values and ideals. The ANC felt that this should be more explicitly stated in the Preamble, and a new phrase should be inserted, to the effect that “ACCEPTING that the right of access to information is the lifeblood, cornerstone, pillar or foundation of our democracy”, which the third phrase should be changed to read, “ACKNOWLEDGING that the right of access to any information held by the State may be restricted by reason of national security”.
This point had not really come to the fore during the public hearings. The Constitution provided for openness and the right of citizens to have information. Section 36 also said that that right must be balanced with the interests of the state, and that must be borne in mind at all times. He noted that, worldwide, the State had a right to limit the right of access to information in order to protect the necessary categories of information, and the same principle, with the correct balance, should apply in South Africa. He believed that these changes would emphasise the necessary dynamics, checks and balances that would allow the State to function properly.
Mr Mazosiwe said that the ANC would engage further with other political parties on the detail. He thanked other parties for their cooperation, insight and improvements to the Bill.
Mr Bloem said that, before engaging with the comment, he wanted to add that the question of minimum sentences had also been debated. The ANC had proposed, during the meetings with the Chief Whip, that the minimum sentences be deleted. In effect, it did not add much to the Bill, because the Court’s discretion could not be ousted, but it would remove tension from the Bill.
Mr R Lees (DA, KwaZulu Natal) agreed that constructive engagements had taken place, but said these were incomplete, and that there was some way to go. He thought that the question of minimum sentences had been agreed. He also said that the opt-in clause still needed further discussion, as the DA had proposed that this should ultimately be a decision by Parliament. The classification authority for the South African Police Service (SAPS) was another issue that was discussed at some length. A few other matters still needed discussion, whether privately or in open meeting, and he pointed out that the DA’s suggestions had been put to the ANC, but there had not yet been a response.
The Chairperson said that there was nothing wrong in the parties noting that there were other issues on which there was not agreement, and those could be parked for further engagement.
Mr Mazosiwe agreed that where parties felt the issues had not been addressed fully, they should be flagged. This was a forum in which the details of amendments should be discussed. The ANC may also wish to caucus on some of the issues raised by others, and he suggested that, rather than taking the form of questions and answers to each other now, caucus debate may be more appropriate. He agreed that Members should identify areas where they felt that further discussion was needed.
Mr Bloem agreed on that point. He asked that he be provided with a copy of the document from which Mr Mazosiwe had been reading, noting that whilst in principle some suggestions were agreed, the final wording still needed to be studied. He agreed on the question of minimum sentencing. He pointed out that the exclusion of municipalities was a new suggestion, and he would need to look at that. He thought that the Committee had made a major step in the right direction, and should continue its work with speed.
The Chairperson commented on the clause for municipalities. He had understood that the principle of exclusion was agreed, but the main issue was how it would be dealt with.
Mr Lees said that the DA had submitted what it believed was required, in the form of a written document. He was happy to continue with negotiations in order to achieve a Bill that passed constitutional muster. However, he agreed with Mr Bloem that it was necessary for other parties to have sight of the detailed ANC proposals, to avoid new issues being “sprung” on them. The DA felt that more debate was needed, but would be carry to continue this process either by party-to-party meetings, or engagement in the full Committee meetings.
Mr Gunda agreed that the ID had also held discussions with the Chief Whip and agreed that whilst many of the issues had been agreed upon, it was necessary to get a written document from the ANC.
Mr P Zulu (IFP, KwaZulu Natal) confirmed that the IFP had agreed with the proposals of the ANC.
Mr L Nzimande (ANC, KwaZulu Natal) clarified that the ANC was not drafting the Bill, so the proposals should be referred to the State Law Advisors, for all agreements and inputs to be factored in to an amended document. He thought this meeting could not deal with matters such as the opt-in clause, as it raised questions that had to be answered by the State Law Advisors, such as whether double-delegation might result, and whether this was allowable in law. The State Law Advisors’ draft would also have to be checked, to ensure that it correctly reflected what the parties wanted.
Mr Matila thought that the matter had been simplified by the meetings, and conceded that the ANC should have responded in writing to allow for fair engagement. He supported the suggestion that the State Law Advisors be asked to draft new wording on the matters where there was agreement in principle.
Mr D Worth (DA, Free State) agreed that some of the matters had been agreed, but noted also that Mr Mazosiwe had not made mention of others. He agreed that it would be essential to get a list of the ANC amendments, showing both what was agreed to, and any objections to proposals from other parties.
Mr Mazosiwe urged that the momentum be maintained. He agreed that the presentation he had read out would need to be submitted in writing to all Members. There were some other issues that the ANC also needed to refine and check in relation to the DA’s submissions, and these must then be debated at the Committee. He noted that the DA was not presenting a new document, but wanted specific responses on some questions, whilst it had also stated that it was in agreement with many of the provisions. COPE, ID and the IFP appeared to be largely satisfied with what the ANC had presented.
Mr Lees agreed with much that Mr Mazosiwe had said, but cautioned that there was still some way to go down the road. He quipped that Members should neither “trip over the pebbles nor trip each other up” on that road to finalisation.
Mr Bloem asked when the Committee would deal specifically with the document that all parties had submitted some time ago, outlining each party’s proposed amendments.
The Chairperson responded that this document had been adopted by the Committee, and its content was the basis for the further engagements that had taken place. Whilst the issues were relevant, parties had since either found consensus, or new issues were also raised (such as the specific mention of classification of Cabinet documents). Mr Nzimande was correct that this meeting was essentially meant to identify the issues. He agreed that the State Law Advisors should collate and integrate the information, and present new wording for approval by the Committee, and by the next meeting the parties would hopefully have engaged with each other again. He had been provided with a copy of the DA’s proposals, and although the document was quite lengthy, he noted that on many matters there were suggestions for wording changes, but agreement on the broad principles.
The Chairperson therefore formally requested that the State Law Advisors be provided with a copy of the proposals from each of the parties, including the new issues raised. They should then incorporate all areas where there was agreement into the Bill, and identify other issues where there was not yet agreement on the wording. The Committee wanted to move to the situation where it could work from a single document.
Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, clarified that she would now prepare a “Working Draft”, highlighting the areas of agreement and contention.
Mr Bloem questioned this, saying that parties did not yet have all documents in front of them, and suggesting that one consolidated document, with all proposals of all parties, should be circulated. He thought it was premature for the State Law Advisors to prepare anything until the parties had debated all the issues. He proposed that this meeting be adjourned for a while, to allow parties to continue negotiating, that the ANC should circulate the document from which Mr Mazosiwe was reading, that that the ANC could also prepare responses on some issues. It should be possible for the meeting to continue later in the day.
The Chairperson said that many proposals had been tabled, and there was significant agreement. He noted a section in the DA document, starting “The DA accepts the proposals of the ANC on…”, and added that, later in the same document, there was a note that COPE agreed with the DA. It was therefore possible to narrow down the issues significantly, although it was accepted that on some, further discussion was needed. The State Law Advisors could provide one Working Document, and he emphasised that no issues would be “lost” but where there were differing points of view, they would be highlighted. The preparation of this document would not remove the right of political parties to debate further. Some of the matters could probably be sorted out very quickly.
Mr Lees said that the DA document had not yet been tabled as an official document to the Committee, although he was happy to do that, so that it became a public document, and part of the public discourse.
Mr Matila agreed that the documents should be circulated, and proposed that this meeting be closed.
The Chairperson appealed to Members to use their time optimally, and said that, if he was needed, he could help to fast-track the process. The ANC had committed itself to provide the other parties with the new amendments, and other parties needed to respond on the DA’s queries. The ID and IFP had indicated that they were, so far, comfortable with the process.
At the beginning of the meeting, the Chairperson extended the condolences of the Committee to Ms D Ntwanambi (ANC, Western Cape) and her family, on the loss of her husband.
The meeting was adjourned.
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