Submissions on Protection of Information Bill

Intelligence Legislation

24 June 2008
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The Committee had received submissions on the Protection of Information Bill and had appointed a sub-committee to peruse all the submissions and decide which of them should be presented to the Committee at public hearings.

The Chair noted that the submission from the South African History Archive had been submitted as a joint submission with the Nelson Mandela Foundation. In order to ascertain if this was in fact the case, the Chair had confirmed this with the Foundation.

The Chair also referred to the fact that the Ministerial Review Commission had made a written submission. The Chair had contacted the Intelligence Minister to clarify the status of the Commission and to ensure that the Minister was in fact aware of this submission. The Committee said that they were not sure whether this was appropriate and were uncertain in which capacity this Commission was submitting their document. It was suggested that there would be no problem with this group submitting their document if they did it in their own capacity and not as that of the Commission.

Members were also confused why state institutions were submitting on the Bill, as the Bill had been approved by Cabinet. They felt that this could be an indication that there had not been sufficient consultation within government departments. Also, Members felt it might be necessary to find out with whom the Ministry had consulted in drafting this Bill.

Members accepted the list containing proposals for oral submissions. They believed that the sub-committee had applied their minds in drafting this list.

The Committee Researcher summarized the main issues raised in submissions in a brief presentation. Members requested him to do further research on the way the issues raised in the Bill were dealt with internationally. Members also noted that it had become clear from submissions that the public lacked the understanding of certain concepts in the Bill, such as the concept of “national interest”. While this would be addressed in public hearings there were also suggestions that these be dealt with in a parallel process.

Meeting report

The Chair explained that a sub-committee made up of members of the Committee had met the previous day to peruse all the submissions and decide which of them should be presented to the Committee orally.

He referred to the submission from the SA History Archive (SAHA) and said that this organization had indicated that they were partnered with the Nelson Mandela Foundation. The Chair had contacted the Foundation to confirm that the submission was made on their behalf as well. The Foundation had responded that the submission was a joint effort by SAHA and themselves.

The Chair referred to the fact that the Ministerial Review Commission had been interested in making an oral submission. He was not sure if this was appropriate, since they had been appointed by the Intelligence Minister for a specific purpose. It was also not clear on whose behalf they were making the submission. The Chair had written to the Minister to find out on whose behalf they were submitting and if he was aware of the submission. The Minister had not responded as yet.

Ms M Mentor (ANC) suggested that the matter be put on hold until the Minister responded.

The Chair agreed that this matter could only be dealt with once the Minister provided insight as to the status of the Review Commission.

Ms D Smuts (DA) said that they were not being considered for an oral submission, so there was no harm in the Committee reading the document, merely for information purposes.

Dr S Cwele (ANC) said that the Commission had already advised the Minister on the Bill. If they were submitting again, it could mean that the Minister had failed to incorporate their proposals. They could submit their views again, but it could not be in the name of the Ministerial Review Commission.

The Chair said that the Committee would wait for the Minister to clarify the status of the Commission before taking a further decision.

Dr Cwele asked whom the drafters had consulted on the Bill. Since the Bill had been approved by Cabinet, he was uncertain why so many state institutions were still making submissions. It was important to determine if there had been consultation within the government departments. He referred to the fact that Eskom wanted to submit, even though they were a state-owned enterprise.

Ms Smuts argued that Eskom should be allowed to present since the Minister of Public Enterprises was merely a theoretical shareholder in Eskom.

The Chair said that the Committee should find out with whom the Ministry had interacted on this Bill.

The Chair informed the Committee that the sub-committee, which was comprised of Adv Swart, Ms Mentor, Mr L Landers (ANC) and himself, had read through all the submissions and come up with the list for oral submissions.

Mr D Bloem (ANC) said that he supported the proposal list, as he was satisfied that the sub-committee had applied their minds when drafting them.

Ms Mentor agreed, but said that the reference to Human Rights Commission (HRC) should be replaced with SAHRC.

Dr Cwele supported the list too, but felt that there was still sufficient time to call for further submissions.

Adv P Swart (DA) agreed, saying that this was possible since the hearings were being moved to 29 July 2008. However he proposed that in order to be considered for an oral submission, the organization/person should first provide a written submission.

The Chair agreed.

The Chair indicated that he had requested the Committee researcher to give a brief summary of the submissions.

Committee Researcher presentation on submissions on the Bill
Mr Patrick Ngqukuvana (Parliamentary Researcher: JSCI) read through the document titled “Summary of Submissions on the Protection of Information Bill” (see document).

The following provisions were proposed for amendment:
 - Chapter 1 - Clauses 1, 2 and 3
 - Chapter 2 - Clauses 4, 5, 6, 7 and 8
 - Chapter 3 - Clauses 9, 10 and 12
 - Chapter 4 - Clause 13
 - Chapter 5 - Clause 14, 15, 16, 17
 - Chapter 6 - Clause 18, 19, 20, 21, 22, 23, 26, 27
 - Chapter 7 - Clauses 29 - 32
 - Chapter 8 - Clauses 33 and 34
 - Chapter 9 - Clause 36
 - Chapter 10 - Clause 37 and 38
 - Chapter 11 - Clauses 39, 40, 45, 46 and 50
 - Chapter 12 - Clause 52
 - Chapter 13 - General observations

Discussion
Dr Cwele felt that the presentation was very useful. He asked Mr Ngqukuvana to do an international comparison on how the issue of protection of information was dealt with in other countries.

Ms Mentor again commented on the fact that HRC had to be replaced by SAHRC.

Mr Landers requested the researcher to examine the way other countries dealt with the period for which information should remain classified.

Ms Mentor said that the public did not have a very clear understanding about the issue of “national interest”. This could be addressed when Members met the presenters at the hearings. It highlighted the need for increased communication with the public.

Dr Cwele said that conducting this dialogue was the role of Members of Parliament. The dialogue regarding “national interest” need not only form part of the hearings, but could be dealt with in parallel processes too.

Dr Cwele said that the types of definitions provided were important, as it determined the types of responses they would receive. For example, when defining “intelligence” it should not be described as a means of protecting the State, but as a way of protecting the people. It was very important to balance rights and responsibilities in this regard. It was important for government to ensure that their messages were clear and that they could not hide behind a veil of secrecy.

Ms Mentor suggested that the Committee should perhaps look at the ‘Definitions’ and ‘Objects’ of the Bill to see if these issues were being addressed.

The Chair said that the Committee could choose a few people to conduct this exercise.

The Chair said that this was the Committee’s first interaction on the submissions. It would be important for the Committee to work from an informed position. Thus, before they deleted or amended anything, they first had to understand what they were doing. They would therefore move through this process carefully so as not to make any mistakes.

The Chair informed the Committee that they would be taking an overseas trip to India to learn about how they dealt with these issues. They had wanted to visit Germany, but the German Parliament was in recess and was not receiving delegations. The Members would be divided into small groups to examine issues such as declassification of information, classification of information and databases. Although the arrangements had not yet been finalized, he said that the trip would be taking place during the third week of July 2008. Upon their return, the public hearings would commence.

The Chair adjourned the meeting.

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