Hon Chairperson, colleagues and fellow South Africans, the Protection of State Information Bill has traversed a long path to reach this point. It is a product of efforts of successive Ministers who led the state security portfolio. These were Ministers Nhlanhla, Sisulu and Kasrils.
Today, I stand before this House to complete this work. All these successive efforts have been made with a clear understanding that upholding national security is not a matter of choice but an obligation placed by section 198 of the Constitution on both the national executive and Parliament. This Bill is, therefore, a legislation of general application in upholding our national security.
We thank the members of the ad hoc committee who devoted sufficient time in improving the Bill. They also engaged members of the public through submissions and public hearings. They have done a sterling job, for which we are all grateful.
The ANC believes that the changes made to this Bill are a correct response to the valid concerns raised by fellow South Africans during the protracted engagements. The amendments continue to ensure a fine balance between secrecy and openness that are the essential pillars of national security in a democracy. Chairperson, allow me to clear the confusion surrounding this Bill by explaining its key objectives.
Currently, there is the Protection of Information Act, Act 84 of 1982 in our statute books. The apartheid regime followed a narrowed approach to national security, aimed at protecting the state mainly from those who were fighting the oppression.
From 1994, the democratic state followed a broader approach to human security, which went beyond securing the state to include protecting the people from fear or want. This Bill is heeding the clarion call of the Freedom Charter that "All apartheid laws and practices shall be set aside".
Secondly, since 1994, our country has been facing an increasing threat of espionage because of inadequate provisions in the 1982 Act. The foreign spies continue to steal our sensitive information in order to advantage their nations at the expense of the advancement of South Africa and her people. This cannot be allowed to continue.
Sections 36 and 38 of this Bill make espionage a serious offence that will deter to both foreign spies and their collaborators. However, Chairperson, it is important to note that you won't find foreign spies marching openly in the streets of Cape Town complaining that we are removing their easy access to our sensitive information, but they will fund their local proxies to defend their illegality. [Interjections.]
Thirdly, we currently have no remedy to the rising threat posed by information peddling. [Interjections.] This is where fabricated information is introduced to the organs of state with the ultimate aim of gaining financial reward or causing divisions. It often comes in the form of exaggerated yet unsubstantiated threats or conspiracies.
You may remember the Meiring Report which led to President Mandela appointing the Mohamed Commission to investigate claims that some in the ANC were plotting to overthrow the democratic government, and were sponsored by Michael Jackson. The Commission found these allegations to be a mere fantasy. [Interjections.]
Subsequently, other such conspiracy reports were investigated and found to be baseless. The most notable report tabled in this House, is the Special Browse Mole Consolidated Report, which was sold by peddlers to the erstwhile Directorate of Special Operations known as the Scorpions. Section 45 of this Bill criminalises and makes peddling a nonprofitable business.
The Bill also introduces the protection of valuable information by all organs of state. Valuable information is the nonclassified state information that requires protection from alteration, loss or destruction in order to prevent individual hardship to our people. I am certain that each hon member of this House has heard from our respective constituencies of the difficulties our citizens experience when their birth certificates, identification documents or driving licences are falsified, manipulated or destroyed.
In the recent years, we have had cases where unscrupulous individuals hijack companies worth millions of rand, largely by illegally altering the information in the companies registry. Sections 5, 8, 9 and 46 of this Bill bring relief to the public by protecting these databases in the hands of the state.
Hon members, in line with our new approach of balancing secrecy and openness, this Bill introduces a system of declassification of sensitive information. It introduces a practice and culture of regular reviews of classified state information. There are compulsory reviews after 10 years and mandatory declassification after 20 years, unless there are compelling circumstances to prevent such. The ANC introduced an amendment introducing the classification review panel, an independent body accountable to Parliament, charged with overseeing that the classifying authorities comply in this regard.
This Bill is not about regulating the media. There is no single mention of the media in this Bill. Neither is this Bill about covering up corruption. Let me take this opportunity to reiterate that as the ANC marches to its centenary celebration in two months' time ... [Interjections.] ... we remain resolute and steadfast against corruption and fraud. Section 49 of this Bill prohibits and criminalises improper classification with imprisonment of up to five years. The amendment made by the ad hoc committee further enhances the alignment of the Promotion of Access to Information Act and the Protected Disclosures Act.
Chairperson, the improvements we applauded at the beginning would not have been possible without the submissions and contributions of our people through their diverse organs of civil society and campaigns. In the public hearings, they pointed out weaknesses in the earlier formulations of the Bill.
For instance, the committee, among other things, removed the provisions which were highlighted to be overbroad and may, thus, be unconstitutional. It narrowed the basis for classification from national interest to national security. All these were legitimate concerns and, as the ANC, we did not hesitate to support them.
Hon members, there are two demands that we cannot accommodate in this Bill. These are the public interest defence and public domain defence clauses. A public interest defence is a defence which allows a defendant who discloses classified or protected information to avoid criminality by claiming it was in the public interest to do so. The question is: Who determines such public interest? If the courts find that there is no such public interest after such disclosure is made, the state will have no recourse as the harm will have been done as a result of such disclosure.
We have looked at international best practices and there is no country which follows such a reckless practice. It has been persistently rejected in the United States of America, USA, over a long period of time. The British once accepted it but quickly rejected it as it was rendering protection impossible. In addition, the Bill has several in-built mechanisms for public interest protection and overrides. As we have said, we have strengthened even the provision around whistle-blowing protection.
The second one we cannot accommodate is what is called the "Ambrosini clause", the public domain defence clause. [Interjections.] The Constitutional Court has rejected this notion in the case of Independent Newspapers (Pty) (Ltd) v Minister for Intelligence Services and Others in 2008.
Hon Chairperson, it is my singular honour and privilege to invite the House to approve the second debate of the Protection of the State Information Bill. I thank you. [Applause.]
Thank you, hon Minister. Before I recognise the next speaker, I wish to remind hon members that it's against the parliamentary Rules to make use of any device to take photos in the House. Let us observe the Rules. Thank you very much.
Chairperson, hon Ministers, hon Deputy Ministers, hon members and guests, today you are going to hear something that you haven't heard before. [Interjections.] I would encourage you to listen very carefully. We heard from the hon Minister something about the old Protection of Information Bill.
Debating in the apartheid Parliament of the Republic of South Africa in 1982 the then Minister of Justice had the following to say, I quote:
This gives the State President the power to declare organisations outside the Republic of South Africa to be hostile organisations for the purposes of this Act. The reason for this is that organisations may be established abroad, like the ANC, and may make onslaughts on the Republic of South Africa.
Hon members, this is the 1982 Act. These are some of the circumstances that brought into operation the old apartheid Protection of Information Act which today remains law in our country. The hon Minister is correct, the time is long overdue for this law to be repealed. The ANC looks forward to finally burying this old Act.
The first version of the new Protection of Information Bill was introduced to Parliament on 5 May 2008 and was referred to the ad hoc committee dealing with intelligence and legislation on 13 May. The committee met on 4 June 2008 for the first time.
However, following on a resolution taken on 15 October 2008 the ad hoc committee requested that the Minister of Intelligence withdraw the Bill. Motivation for the withdrawal came from the ANC study group.
The new version of the Protection of Information Bill was re-introduced to Parliament on 9 March 2010 by the hon Minister. After few meetings the committee had to adjourn because of the World Cup. Nonetheless, public hearings were held on 21 and 22 July. Here it should be noted that all those organisations, all of them that have shown an interest or had applied were invited to participate in the public hearings. No one, not one organisation, was excluded.
Chairperson, I must add here that many entities such as Business South Africa, the SA Council of Churches, and the SA National Editors' Forum, Sanef, insisted to meet me in private and sent high level delegations in order to register their concerns regarding the Bill in the form that it was then. However, all acknowledged the need for such legislation. I advised them that their concerns will be given the necessary attention and to a large extent this was done and is reflected in the Bill today. As the ANC we were concerned about certain aspects of the Bill and therefore obtained a number of legal opinions to guide us so that we were informed on all aspects of the Bill including its constitutionality on certain clauses and the Bill itself.
In addition, the committee was also confronted with legal opinions on various aspects of the Bill coming from other interested organisations including the DA. Some of these legal opinions were considered and led to meaningful amendments to the Bill.
The ad hoc committee received presentations from the Minister of State Security on international best practices pertaining to the protection of state information particularly sensitive state information.
This exercise also led to a number of amendments to the Bill. Concepts such as national security, public interest events, public domain and many more were all thoroughly researched. My colleagues will talk about these aspects later.
The ad hoc committee itself met 68 times since the reintroduction of the Bill to consider and deliberate on it. Accordingly, on Monday, 5 September 2011, the ad hoc committee finally completed its work on the Bill. I repeat here Chairperson, that it should be noted that, while opposition parties worked very well with the committee to finalise the Bill, the DA, IFP, ACDP all voted against it at the committee meeting. The ad hoc committee report was accordingly published on the Announcement, Tabling and Committee Report, ATC, on 13 September.
The original Bill has been substantially amended to the extent that the finalised Bill has been presented to the National Assembly as a redrafted Bill. However, there is a matter in this whole episode of the Bill. Hon members, I think you must listen to this. I have recently travelled through the country briefing South Africans and others on aspects of the Bill. I was shocked by the amount of misunderstanding that exists amongst our people on what the Bill is all about.
All, without exception, have relied on the media for their misunderstanding and all have confessed that it was through the media that they have developed incorrect and false perceptions and opinions about the Bill.
Hon Chairperson, I speak from experience. I have had many media interviews while the ad hoc committee was processing the Bill. I do not remember one occasion when I was correctly quoted or my version of the committee proceedings was accurately reported. This is not a media Bill. There is nowhere in the Bill where the media is mentioned or is the object of focus in the Bill.
The Bill criminalises certain behaviours and unlawful actions and these provisions apply to everybody in the country. It was extremely disappointing when we were faced with these continuous negative reports. It is, in fact, the media institutions which at the public hearings called for drastic changes to the Bill. For example, one of their major concerns was the broad application of the Bill. They complained that the Bill applied to all organs of state; we were told that there were thousands of organs of states and this would lead to widespread corruption if these institutions had the power to classify.
Then, we changed the Bill to limit the application just to the police, defence and civilian intelligence. What did the media say? The report said, "Cosmetic changes". This has been the attitude. No matter what amendments the committee made.
I found a most useful statement in the judgement in the matter of Midi television vs the Director of Public Prosecutions. It is a Supreme Court of Appeal case in which the court said the following about the press, I quote:
It is important to bear in mind that the constitutional promise of a free press is not one that is made for the protection of the special interests of the press.
The Court goes on to say: Press exceptionalism - the idea that journalism has a different and superior status in the Constitution - is not only unconvincing but it's a dangerous doctrine.
This is what the Supreme Court of Appeal said.
Hon Chairperson, I've said that the Bill before the House has undergone vast changes to accommodate the concerns raised by all to make it workable and consistent with the Constitution of the Republic.
The ANC supports the Bill. I would like to say many thanks to all those who served in the ad hoc committee. They worked extremely hard and at most times under very difficult circumstances in order to complete the Bill. On many occasions the committee was forced to work till night. It is therefore appropriate to say thanks to the Minister of State Security and his staff for the briefings and assistance they rendered when called upon by the committee; the Chief State Law Adviser, Mr Enver Daniels and his staff; the parliamentary legal service ; staff who were allocated to the ad hoc committee; hon comrades of the ANC who served on the committee; members of the opposition who assisted in making many valuable contributions; a special word of thanks to the DA members, namely, hon Smuts, hon Maynier, hon Stubbe and hon Coetzee who were always there and were always listening and had very meaningful contributions. [Applause.] The hon Swart of the ACDP was there too and he was very useful and he had made very meaningful contributions.
Hon members, I do not have much to say about the hon Oriani-Ambrosini. [Laughter.] I can only say that he did open my eyes and I am a better person now. My eyes have been opened by hon Oriani-Ambrosini. Thank you. [Applause.]
Chairperson, hon Burgess, thank you for your courteous remarks. Sir, during the Mbeki era, the Kasrils Intelligence Ministry set itself the task of writing a law which would constitutionally answer these specific questions: One, what may be classified; two, by whom; three, when should declassification occur and who should do it; and four; what procedures, systems for review, reports and requests should be provided for?
However, the questions were not answered in the 2008 Kasrils Bill, which said that just about everything could be classified under the then notoriously broadly-defined national interest, by almost everybody. The 2001-11 ad hoc committee has, however, now answered these questions in the 68 meetings that were held. We sat for many hours.
So, what may be classified? We have given the answers - only sensitive information actually likely to cause demonstrable harm to national security at three thresholds of damage. Our only remaining problem, as the DA, is the fact that the top secret level is not sufficiently distinguishable from the secret level. For the rest, we succeeded in achieving 99% of what we argued.
Regarding the next question - how is national security defined - it is, as it ought to be, largely about keeping us safe from various forms of force. It is 95% of what the hon Maynier argued, and specifically excludes lawful political activity, advocacy, protest or dissent.
What may not be classified? What were once nonbinding directions have, at my request, been turned into conditions and constitutionalised. Whereas the 2008 version asserted that secrecy exists to protect national interest, the provision now reads, on our formulation following the International Covenant on Civil and Political Rights, that secrecy is justifiable only when necessary to protect national security. All of us consider this conditions clause to be the real breakthrough in the Bill.
Who may classify? Only the security services, as we argued, as against all 1 001 organs of state, with the Minister allowing other departments, on good cause shown, to opt in after gazetting that fact.
When does declassification occur? On the opposition side we were ready to adopt Dr Verne Harris' recommendation for self-executing declassification. But, do not underestimate the effects of the declassification provisions which we have adopted against the new, strict criteria. Do not underestimate the reporting and reviewing requirements. The creation of the independent review panel is the ANC's idea, with the opposition invited to draft and the hon Steve Swart doing the bulk of the work. The panel is independent and it can review, set aside and instruct reclassification.
We have, in other words, done some very good work. We have rewritten the whole Bill and we have cleaned up Ronnie's mess. That gentleman has been quoting his own Bill in campaigning against this one. He has repeatedly quoted, verbatim, from his own notorious old clauses on national interest and then called the new Bill a "dog's breakfast of toxic gruel". We threw Ronnie's breakfast into the rubbish bin a very long time ago.
Now, why, sir, despite all the gains that vindicate the parliamentary process, will we vote against this Bill? It is because the ANC failed to clear the last hurdle, and instead of fixing up their offences has now gone walk about with the Bills through the provinces.
We will vote against it because we think that the offences, especially of possession and disclosure, and especially in respect of the intelligence services, offend against the right to receive and invite information. As they stand, they will have a chilling effect on media freedom.
That is why South Africans, led by civil society and the DA, have protested in their thousands. To suggest that they, although civil organisations, are proxies funded by foreign spies, as you did here today, speaks of a paranoiac approach. It is absurd; they are our people. That to me seems like paranoia. Those are all of our people out there protesting.
I think a certain paranoia also underlies the intelligence clause. Why is there a separate offence of possession and disclosure in respect of the intelligence services, but applicable to all persons? Let us not forget that the Cabinet issued a directive in 2003 - yes, President Mbeki, who else - to spy on competition between and within political parties. Today the hon Minister confirms that he has a concern about information peddlers sowing, I think he said, disunity within the ranks of government. Mangaung lies ahead. [Interjections.]
Let me quote one very last time, and I have quoted the Rev Frank Chikane too often, "Corrupt intelligence services are the most dangerous threat to the security and integrity of the state". [Time expired.] [Applause.]
Chair, I think it's quite obvious, as the Minister members of the other parties said, that the need for this legislation was obvious. What was there was totally inappropriate. Not only that, but the assessment that we have a real threat of foreign intelligence operatives and also of criminal elements, is something that we all recognise. So, in that respect, there is nobody really who is serious about the need for this legislation who would counter it.
But, one important thing that we need to say is that the process was not very well-managed. As a result, we have a lot of these outstanding issues, because, had there been more time, the last remaining things could actually have been worked out. One good thing that I do have to say, and it's a testimony to the officials, the chair and members of the committee, is that, despite the very difficult nature of the Bill, in the end a very solid working relationship was developed. That is why, for me, it is a pity that we can't clear the last hurdle.
There has been so much "toenadering" [Making overtures towards]. Theirs is 99% consensus on this ill and for a country such as ours with our history to have achieved that kind of consensus is really something of considerable importance. We need to try, in these last few hours, to see whether or not there is something we can do.
I say all these things knowing full well that Cope and myself, as an alternate member were truants from the committee. We were often absent from school and so, we are not seeking to take any of the accolades for the work done.
I must thank the members of all the parties because they briefed us and kept us up to speed, so we were able to participate. But, that does of course limit the way in which we can take the stick out and beat you. Fortunately it means I'm going to be very temped in what I say.
However, on that issue of the public interest defence and the clause, it does seem to me that there's a philosophical problem that we face as a country because, on the one hand we've got in our Constitution that we have these freedoms of speech, media, as well as the right to information, and on the other hand we've got to protect government and the state and its interests.
I think the problem is that the Bill, as it's crafted, doesn't create the right balance between those two interests. It's not about giving people carte blanche to leak information; that's not what I think the public interest defence is supposed to do. What it's supposed to do is allow that there is a final safeguard when the state goes rotten. By saying that we are not saying this state and this government; we may have our differences on policy, but you may not always be there. I might become the President one day ... [Laughter.] ... and then you are going to have problems, because knowing me and my personality and willingness to fight, you can see how this legislation would come in handy for a person of my temperament.
Unfortunately, the opinion polls don't facilitate that at the moment, so you are safe. I think we have to go back and look to see if we can't find that balance because I really think we could find each other.
The second thing that I have spoken to the chair about is that, even though this Bill doesn't address that issue, we need to find a way because you've raised it yourself, Minister. One of the most serious problems is the people in the government itself peddling information. When that happens there's a breakdown of trust in the relationship between the citizens and the state. Again, it's not a question of your negligence, Minister, or any other Minister's negligence.
When a person is infiltrated into the government, and there are spies, there must be. We would have to be nave to think that there aren't spies in government.
Hon member, your time has expired.
Chair, I just hope that we will find time to have that last debate. Thank you.
[Interjections.]
Order, hon members!
Thank you, Mr Chairman. Just imagine if I were the President! [Laughter.]
This Bill started as a terrible Bill and it became a good Bill with a couple of terrible things that we must now take out. The major concern about this Bill is the extent to which it poses obligations on members of the public beyond the government. There has been a great deal of discussion about the public domain defence, and I thank the hon Minister for classifying it as an Ambrosini defence. It is not an Ambrosini defence; it is a common sense defence. It is a defence which is present in all civilised countries; it is present in the United States, it is present in Canada, and you, Minister, want to deny that to the South African people.
Why? Because you say there is a Constitutional Court judgment. I gave your people - as I gave to the DA - three legal opinions from senior counsel saying you misread the Constitution, because that Constitutional Court judgment was rendered by the Constitutional Court interpreting the law, not the Constitution! So, we changed the law. There is a different law, and that reflects the way it is in America, in Canada and in other countries ... [Interjections.] ... and, ladies and gentlemen, it affects all of you and all of us. [Interjections.] The issue is very simple.
Order, hon members!
MR M G ORIANI-AMBROSINI: It is whether or not we go to jail; whether or not the journalists go to jail; whether or not the members of the public go to jail if we act, if we report, if we speak about a secret document which has been leaked to us but which we had nothing to do with leaking.
It is the reason Julian Assange could not go to jail in the United States. The person who leaked the information went to jail and the key was thrown away. [Interjections.] He could not go to jail because the genie had left the bottle. The secret was out there.
Instead, what this Bill does is impose a string of obligations on all of us - on the people of South Africa - to help the government keep a secret which it, for whatever reason, fails to keep. It is a reflection of a secrecy mindset which is extremely pernicious in all countries, but in the South African context, especially. Each country, including the United States, the UK, France, Italy, and so forth, has had many instances of secret services having interfered in a political process, and they then become the greatest threat to democracy. This country has experienced the secret services having interfered in the making and the unmaking of the President of the Republic.
This can only happen under a cloud of secrecy. The only remedy and medicine is the vigilance of the citizens. Citizens cannot be disempowered by the fear of touching information which has been leaked. If there are people out there who wish to take the pain of leaking information and face the sentences, we must be able to act on it. [Interjections.] [Time expired.] [Applause.]
Hon Chair, hon Members, ladies and gentlemen, fellow South Africans, I join the debate in support of the Bill heeding the call from members of our glorious movement, the ANC, to push on with making South Africa secure.
A lot has been said about the issue of the public interest defence and the public domain defence of the hon Ambrosini. These proposals we in the ANC regard as a recipe for turning the Republic into a banana republic and therefore reject it as a movement. This is more so in light of the attempt by some in the media to attribute groundlessly, interpret and infer contrary positions to some of the leaders of our movement.
Those who advocate this defence describe it as a defence that enables a person who disclosed classified information to argue that such disclosure was done in the public interest, as the hon Ambrosini has said. This provision is sought by those who claim to protect whistleblowers when they expose maladministration, corruption and other criminal wrongdoing within the government.
Mr Speaker, we remain convinced that such a defence is not only undesirable, but is also unnecessary, given the extensive work that we have done to ensure that this Bill provides adequate avenues for access to information and protection of whistleblowers. The checks and balances are in place.
With respect to the latter, there are express provisions in the Protected Disclosures Act, 2000 which has been aligned with this Bill. The disclosure of classified information through the established channels in the Protected Disclosures Act would neither be an offence nor attract a penalty as the whistleblowers are protected accordingly. It therefore stands to reason that there remains no legitimate justification for public interest defence for whistleblowers.
As the Bill stands, it criminalises wrongful classification on the part of officials to hide corruption, maladministration, inefficiency, embarrassment and malfeasance. Hon Chair, those who dare classify wrongfully, face heavy sentences of up to 15 years in jail. This demonstrates our seriousness and commitment, as the ANC, to clean administration. With regards to access to information, contrary to deliberate attempts by those opposed to the Bill, we have aligned this Bill very closely to the Promotion of Access to Information Act, PAIA, of 2000. We have even gone a step further by inserting a clause that allows for information which relates to "an imminent and serious public safety or environmental risk," to be provided within 14 days - a period faster than PAIA - if the public interest to disclose it is higher than keeping it classified. By shortening the turnaround times, we have clearly demonstrated our commitment to balancing openness with national security as the Constitution demands.
Hon Chair, the provisions I have just referred to nullify the calls for such a defence, as the Bill provides for clear procedures and processes under which information, classified or not, can be requested and accessed accordingly.
The question, therefore, that must be asked is: Who are these demands for such a defence seeking to protect?
In our view such a demand seeks to protect sources for foreign intelligence services - espionage - those sympathetic to nongovernmental actors involved in unconstitutional activities - hostile activities - or those who disclose classified information outside channels and legal due process. In the case of the media it is their sources that are now out in the cold. For this undisclosed and unclassified reason the Bill will have a chilling effect if they operate as outlaws. This is the undisclosed and classified reasons for public interest defence.
Mr Speaker, in respect of the public domain defence, our courts have spoken on this matter and we urge those who advocate for such to align themselves with the position of our Constitutional Court. Classified documents that have been leaked in the public domain do not and cannot lose their classified status outside the conditions for classification and declassification. This is the simple message - nothing more, nothing less.
We remain resolute that this Bill has addressed all the legitimate concerns that the public has raised. I thank you.
Chair, this Bill has received unprecedented opposition from opposition parties, civil rights organisations, the media and the public at large. The reason for this is simple. It is widely accepted that the Bill in its current form can be used as a tool to hide corruption and other wrongs perpetrated by the state.
Thomas Hobbes appropriately referred to the state as the Leviathan, a monster that can influence and dictate all spheres of life, whether public or private. In modern terms it is the constitutional democracy that provides the mechanisms to reign in the Leviathan. In this respect one of the principal tenets of constitutional democracy is the free flow of information that provides the energy to establish organisations and movements to counter the might of the Leviathan. Therefore, any attempts to stifle the flow of information must be seen as inherent undemocratic acts.
In die lig hiervan is dit onsinnig dat die ANC hardnekkig weier om die openbare belang-verweer in die wetsontwerp te erken, tensy die ANC in der waarheid in wese 'n ondemokratiese organisasie is. Dit sal ons uitvind wanneer die wetswysigings wat ingedien is deur die Vryheidsfront Plus en die IVP weer aangehoor word. (Translation of Afrikaans paragraph follows.)
[Considering this it is senseless for the ANC to doggedly refuse to acknowledge the defence with reference to public interest in the Bill, unless the ANC is in fact an undemocratic organisation. This we will get to know once the legislative amendments submitted by the Freedom Front Plus and the IFP are considered again.]
The system of relationship between the state, media and the public is a complex one. And what we know of complex systems is that they generate unintended consequences. One of those consequences relates to media diversity. Electronic media allows for the proliferation of new newspapers and publications in various languages. For many of those new businesses to survive and grow, they will need quality current affairs content. However, this Bill directs such newcomers to apply to court, as a last resort, to possess and publish classified information. Due to the huge legal costs involved, it will only be the existing large media houses that will be able to challenge classification in terms of this Bill, thus eroding the growth of media diversity.
Daarom het die VF Plus wysigings tot die wetsontwerp ingedien waarvan een die openbare belang-verweer is. lndien ons die staatsmonster in toom wil hou, mag ons nie kompromie maak ten aansien van die vrye vloei van inligting nie. Die ANC sal dus nou moet besluit of hulle ware demokrate is, of net in naam. Dankie. (Translation of Afrikaans paragraph follows.)
[For that reason the FF Plus submitted amendments to the Bill of which the defence with reference to the public interest is a point in case. Should we wish to reign in this monstrous state, we cannot compromise at the cost of the free flow of information. Therefore, the ANC now has to decide whether they are true democrats in the true sense of the word, or in name only. Thank you.]
Chairperson, may I firstly thank the hon Burgers and hon Smuts for their kind words; as pointed out by various speakers, we have a vastly improved Bill. And this aspect has not been given a proper attention in the public discourse about this Bill. However, as we all know the main outstanding issue relates to the absence of public interest defence.
We as the ACDP vigorously argued for the inclusion of such a defence and not only to protect journalists but also members of the public to whom certain documents are leaked and then wish to expose fraud and corruption. In our view, no compelling argument was presented for not including such a public interest defence.
We need to be very frank about that. South Africa is unique with the Promotion of Access to Information Act override that we have and that was to a certain extent built in terms of this law, but places us in a unique situation when we compare ourselves to international best practice. We also already have a public interest defence in our criminal law in the Films and Publications Amendment Bill. A journalist or member of the public does not get off scot-free, they will be charged. However, it will be the court, and not a member of public or journalist, that decide. The court will balance the harm caused by the disclosure with the public interest sought to be promoted.
Anyone who fails to persuade the court would face imprisonment and it would thus be a very serious deterrent to anyone casually tempted to disclose protected information.
In the view of widespread fraud and corruption, included in our state security organisations, the omission of a public interest defence renders this Bill open to constitutional challenge. As far as international best practice is concerned, let us look at the Ontario Superior Court, which struck down similar sections in the Canadian legislation that were used to prosecute a journalist. The court found out that these sections arbitrarily and unfairly and with a blunt of criminal sanction restrict freedom of expression including freedom of the press.
The ACDP will not support the Bill without the public interest defence, and we would urge Members of Parliament who are concerned about the constitutionality in terms of section 80 of the Constitution, should the President assent to the Bill in its present form, to refer to the Constitutional Court. A third of the Members of Parliament can do so ... [Time expired.] [Applause.]
Hon Chairperson, the PAC of Azania opposes the Protection of State Information Bill. In this era of wanton looting of state resources by some members of the ruling party, the Bill could only be seen as a veil to hide corrupt rulers from the media's inquisitive lenses.
In one of his moving poems, which he wrote in prison, Wole Soyinka warned against punishing evil seers instead of punishing evil doers. This Bill seeks the powers to punish those who see evil acts while protecting those who do the evil deeds. It smacks of dictatorship in the making. Thank you.
Chairperson, hon Ministers, hon members, during the extensive public consultation process a number of interest groups raised concerns regarding the need for an independent review process of classified information. However, none of them were clear on the conceptualisation of such a process. It was the ANC who conceptualised the idea and put in place the Classification Review Panel. This Classification Review Panel is one of the most important checks and balances in the legislation. But there are none so deaf than those who do not want to hear.
Unfortunately, as a result of the negative hive that was created around the legislation, there was never an effort to report on this very important matter; instead it served the purpose of the Bills detractors to act as if it does not exist. What Mr Dexter asked for is in this Bill, it's the declassification review committee.
Clause 20 establishes the panel and it determines its powers. It obliges all organs of state to provide assistance as required for the effective functioning of the panel. No organ of state or its employees may interfere, hinder or obstruct the panel or any member of the panel or a member of staff of the panel in the execution of its work. Extremely important and a clear sign of the ANC government's commitment to ensure that the legislation is used the way it is intended to and not abused is determination of clause 23(b); that no access - I repeat - no access to classified information may be withheld from the panel on any ground. Clause 21 sets out the functions of the panel. Amongst others, it must review and oversee status reviews, classifications and declassifications contemplated in the Act. It must receive all reports of ten-year reviews on the status of classified information and receive once a year all reviews on status of classified information conducted during that financial year by the organ of state.
Clauses 22 to 28 deal with the Constitution and the appointment of the panel, the disqualification for membership, the removal from office, remuneration of members and staff, the meetings of the panel, its decisions and appointment of its staff.
I do want to spend some time on the appointment of the panel. It is this House that will appoint the panel. In the appointment of the Classification Review Panel it is required that the public nomination process be embarked upon. The process must be transparent and open and the shortlist of the candidates must be published. The Joint Standing Committee on Intelligence must table five names for approval by the National Assembly. The National Assembly must, by resolution with the support of the majority of its members upon approval, submit the list to the Minister for appointment.
The chairperson of the panel must be an admitted attorney or an advocate with at least ten years' legal experience. The other members must be suitably qualified and at least one of them must have experience in the Constitution and the law. One must have experience and knowledge in national security matters and at least one with knowledge of archive- related matters.
The composition of the Classification Review Panel was a very deliberate and calculated composition. It was composed in such a way that members of the panel provide a balance of knowledge that can deal with the work of the panel under the guidance of the constitutional requirements.
Members of the panel are appointed for a period of five years renewable for one additional term. Appointments to the panel are subject to a security certificate that must be issued to the successful candidates. There are strict guidelines that disqualify a person to become a member of the panel. And this is important because it indicates the committee's intention of appointing people of character to this panel.
No person can be appointed if they are not a citizen or resident inside the country nor if a person is employed by the state and receiving remuneration from the state. No political office bearer, employee of any party, movement or organisation of a party political nature may be appointed. Anyone who is unrehabilitated, insolvent or has been declared of unsound mind by a court of the Republic, has been committed because of a criminal offence apart from an offence that is political of nature and committed prior to 10 May 1994, would also be disqualified. [Interjections.]
Finally, a person who has been removed from an office of trust on account of misconduct involving fraud will also not be qualified to be considered to become a member of the Classification Review Panel. From these disqualifying criteria it is clear that people with the highest integrity, who will carry the trust of the people and who will execute their task with due diligence will be suitable for appointment.
The Classification Review Panel may confirm, vary or set aside any classification decision taken by the head of an organ of state and instruct where necessary the head of an organ of state to change the classification status of the classified information if necessary. Before final decisions are reached the panel must provide the head of an organ of state time to respond in any manner that may be expedient.
The decision of the Classification Review Panel binds the organ of state only subject to an appeal that the organ of state may lodge with the competent high court. [Time expired.] Thank you.
Deputy Speaker, I was one of the few people who were enormously privileged to sit in the public gallery and listen to former President Nelson Mandela deliver his first state of the nation address in this Parliament.
In his address, Nelson Mandela outlined a vision that he hoped would inspire the future of South Africa. Part of that vision was of a government whose very purpose was the extension of the frontiers of freedom. Yet, here we are, 17 years later, rolling back the very frontiers of freedom that Nelson Mandela so hoped would inspire the future of South Africa.
I have no doubt that if Nelson Mandela were present here today he would have had the courage to join the opposition in speaking out against the Secrecy Bill ... [Applause.] ... because the fact is that, in the end, the Secrecy Bill amounts to a full-scale legislative assault on the freedom of the press and the media in South Africa.
The Secrecy Bill criminalises the possession of classified documents, even if the contents of the documents reveal wrongdoing, and exposing the contents of the documents would be in the public's interest.
The Secrecy Bill also criminalises the disclosure of the contents of classified documents, even if the contents of the documents reveal wrongdoing ... [Interjection.]
Hon Deputy Speaker, is it correct to tell the public that we are discussing a Secrecy Bill in this House when there is no such Bill before this House?
Speaker, the Secrecy Bill criminalises the disclosure of the contents of classified documents, even if the contents of the documents reveal wrongdoing and exposing ... [Interjection.]
Hon member, there is a point that we have not ruled on. Are we discussing the Secrecy Bill?
Yes we are.
Is that what it is called?
Hon Deputy Speaker, the member must withdraw, so that the public can hear that he is lying. He is lying in this House.
NATIONAL PLANNING COMMISSION (Mr T A Manuel): Madam Speaker, on a point of order, because it is a Bill under discussion, if the hon Maynier is discussing the wrong Bill, then he is out of order. The Bill before the House is not called what he is calling it. He is out of order.
Hon Maynier, in your point of view, is this is the Secrecy Bill? Is that what you are saying?
It is.
No, you are not answering me. You are saying your point of view is that it is a Secrecy Bill, even though you understand it is not. It is an Information Bill.
Deputy Speaker, the Bill is commonly referred to as the Secrecy Bill. I would be happy to refer to it as "the Bill".
Do not make this difficult for me. We have a Bill that we are discussing. You are discussing that Bill, not what it is commonly referred to as by people who object to it.
I am referring to the Bill.
The one we are discussing?
The Bill that I am referring to is the Protection of State Information Bill.
Thank you, you can continue then.
Speaker, the Bill criminalises the disclosure of the contents of classified documents, even if the contents of the documents reveal wrongdoing, and exposing the contents of the documents would be in the public's interest. So, the question is not whether or not journalists will go to jail, but which journalist will go to jail first. [Interjection.]
Speaker, is it parliamentary for a member to dance while he is speaking in Parliament?
No, come on, when the Rugby World Cup was on you taught all the members how to dance. What is wrong when the member is practising that? [Laughter.] Continue, hon member.
Speaker, that is why the DA proposed a public interest defence. The DA said it should not be a criminal offence to disclose classified information if the disclosure of the information was a genuine and bona fide act in the furtherance of the public interest, but the ANC said no. So, the DA proposed an alternative. It said, we should specify the exceptional circumstances when classified information can - and indeed should - be exposed in a constitutional democracy, but the ANC said no.
The DA said journalists should not go to jail if they expose an unlawful act, but the ANC said no. The DA said journalists should not go to jail if they expose incompetence, but the ANC said no. The DA said journalists should not go to jail if they expose inefficiency, but the ANC said no. The DA said journalists should not go to jail if they expose administrative error, but the ANC said no. [Interjections.]
Hon Speaker, this House is not sitting as a court of law. Where does this judge who is acquitting people who are not facing trial come from?
Speaker, why did the ANC say no? The ANC said no, because it wants to cover up unlawful acts; cover up incompetence; cover up inefficiency; cover up administrative error; and cover up any cause of embarrassment. That is why Nelson Mandela would have had the courage to join the opposition and speak out against the Secrecy Bill.
Today, the DA is working to expand the frontiers of freedom, and the ANC is working to roll back the frontiers of freedom. [Interjections.]
(ANC): Hon Deputy Speaker, is it correct for a member of this House to mislead the public outside by debating what is not within the content of the Bill? For example, within the Bill it does not say anything about the ANC, which is what he is debating right now ... [Interjections.]
Deputy Speaker, there are so many frivolous points of order being taken and I ask for your protection on behalf of the member at the podium.
Thank you. Today, it is the DA which is working to expand the frontiers of freedom and the ANC which is working to roll back the frontiers of freedom in South Africa. Today, it is the DA which stands with Nelson Mandela, and the ANC which stands against Nelson Mandela. Today is a very sad day for constitutional democracy in South Africa. Thank you.
Deputy Speaker, it is widely recognised in international law and in our Constitution that freedom of expression is not an absolute right, and that it can be legitimately restricted if it harms national security. However, all such exceptions must be accompanied by adequate safeguards to protect against their misuse by governments and to ensure that the balance between freedom of expression and national security is properly struck.
Such safeguards feature prominently in the Protection of State Information Bill and the exemptions are both reasonable and justifiable.
In his speech entitled "Media freedom in South Africa: The High Road" delivered to the National Press Club on the occasion of the Percy Qoboza Lecture, Professor Kobus Van Rooyen, Senior Counsel, SC, said the following and I quote:
National security would also place a limit on freedom of expression. Of course, the criteria according to which this is done, and the institutions who implement any classification are crucial to the matter.
The Protection of Information Bill even in its latest diluted form has been subjected to severe criticism in the media and elsewhere. The ad hoc committee has limited its initial application quite considerably. A double- check by the review panel has been included and in the case of declassification applications and public interest is one of the criteria. In the case of denial of such application there is the possibility of a full appeal to the court.
I have compared the Council of Europe's Convention on Access to Documents and section 15 of the Canadian Security of Information Act of 1985. The first allows for a public interest case to be made out for the release of a document. In other words, an application for disclosure must first be lodged. In Canada a person who works in a security establishment is permitted to publish within stringent requisites of whistle-blowing which the official Secrets Act requires.
Although I fully understand the necessity for a public interest defence in the Protection of Information Act and still regard it as first price, I am in doubt wether scrutiny by the Constitutional Court will lead to its inclusion in the Act by the court in cases where persons are charged under the Act.
Prof Van Rooyen went on to say, and I quote:
From this it follows that the court will probably find that, since the Protection of Information Act provides for an application to declassify on public interest grounds, journalists and others would have an opportunity to apply and even take the matter on full appeal to a court, the exclusion of the public interest defence in a prosecution is justified constitutionally. Of course, this limits the opportunity for a scoop, but in this case also, the Bill places a duty on the organ of state to declassify within 14 days or, in some cases, within 30 days. Only a court may allow it to lengthen the period. Of course, an accused in terms of the Act would always be in a position to show that the classification that took place resulted from a fraud. Since the ad hoc committee has introduced a review panel which would have to confirm all classifications, I doubt whether this defence will in practice have a wide application.
In other words, Prof Kobus van Rooyen expresses a view which is generally in line with the approach taken by the ANC on the public interest defence. Moreover, Prof Kobus van Rooyen clearly sets out the exemptions and the relevant safeguards which international law and our Constitution demand of us.
The discourse around this Bill has been characterised by vigorous debate which is to be expected. The discourse has also been characterised by vitriol, vilification, name-calling and insults usually found in a place called Twitter, which in my view is the last refuge of cowards, and, most disturbingly, by blatant lies.
The Right 2 Know campaign held a march in Durban on 5 November of this year at which a memorandum was handed to the eThekwini Mayor's office. Amongst other things, the Right 2 Know campaign's memorandum says, and I quote:
Any state agency, government department, local municipality and even parastatals can be given power to classify public information as secret. Anything and everything can potentially be classified as secret at official discretion if it is deemed to be in the national interest. [Applause.] Commercial information can be made a secret making it very difficult to hold business and government to account.
You would have more success in reincarnating the dodo than you would have in finding national interest and commercial information in this Bill. These two paragraphs in the Right 2 Know campaign's memorandum are nothing more than blatant lies. Elsewhere in this memorandum the Right 2 Know campaign sets out their demands. Some of those are, and I quote, "limit security to core state bodies in the security sector such as police, defence and intelligence".
The decision to restrict the Bill's application to the security services referred to in Chapter 11 of our Constitution was taken in July or August this year and can be found in clause C of the Bill.
"Exclude commercial information from this Bill," they say. Need we say more? Deputy Speaker, one wonders whether the Right 2 Know campaign should now be referred to as the "right to lie" campaign. [Laughter.]
Some very respected and responsible organisations, esteemed members of civil society and senior journalists are constituent members of the "right to lie" campaign. One also can't help but speculate as to why they would lend their names to the drivel found in this memorandum.
Sometime in the very recent past an article was carried in the local media which carried a statement by a family member of Ahmed Timol who in all probability was thrown off a building and died. The family laments the fact that there is no law that assists people like those of his family who want nothing more than to know the circumstances surrounding the death of their loved ones, but they are unable to access any information relating to Ahmed Timol's murder because that information remains classified.
Critics, opponents and self-styled commentators on the Bill refuse to acknowledge the fact that a very large body of information emanating from the colonial era through the apartheid era until today is in the hands of the state and remains classified. Such information can only be classified when this Bill becomes law.
Waiting for a legal instrument that authorises its declassification such as the information relating to the murder of Ahmed Timol, that legal instrument is the Bill before this House and we support it.
Deputy Speaker, let me thank the members who participated in this debate. Once more let me thank the members of the ad hoc committee for work well done. We are very grateful for that. Let me also thank the members of the public who ensured that we get the right balance between secrecy and openness in our democratic society.
Most of the members have said we are more than 99,9% agreeing on this Bill and in any standard that is called sufficient consensus [Interjections.]. In times like these where unsubstantiated allegations are thrown to the public or used to sow confusion we draw inspiration from giants of our struggle such as Amilcar Cabral whom I quote, "do not hide the truth from the people. Tell no lies and claim no easy victories". [Applause.]
It is unfortunate, hon Maynier, that you come up with this absurd idea that Madiba, the icon of our struggle, may disown his own organisation and policies which he fought for for so long and dedicated his life to. No amount of distortion, for instance you are claiming that the Protected Disclosures Act and the Protection of Access to Information Act, PAIA, are not incorporated in this Act, but you know very well because you are an active member. You strengthened the alignment of those provisions, so claim no easy victory, and tell no lies.
Ms Dene Smuts, I respect you very much, but this absurd idea that an ANC government at some stage during this democracy took a decision to spy on political parties through an instruction, tell no lies ... give that instruction because it is incorrect that President Mbeki gave instructions for our people to spy on political parties.
More importantly, for the Freedom Front, I understand that the member was not part of the processes, hence he sings this scratched song "the Bill in its current form" - the Bill has been changed so many times, hon members. He is listening to those who are protesting outside who say, "The Bill in its current form", the Bill has been changed long time ago.
To come here and say that the ANC is a nondemocratic organisation; let me advise you, most undemocratic organisations change and change until they die. The ANC will be 100 years in a few months' time. It is your testimony to this. [Applause.]
Hon Swart, let me say there might be other legitimate concerns. There is still a process in the NCOP for those who have legitimacy and we will consider them in the NCOP. Hon Swart, we have noted your threat of using section 80 of the Constitution for a referral to the Constitutional Court but let me advise you, you need one-third. We are saying as the ANC we won't participate in that process because we believe the committee has done a sterling work and we believe the Bill in this current form is constitutional.
For hon Ambrosini, I want to appeal once more to withdraw this amendment you have put in our Order Paper because all these things you are putting have been debated in the committee. If you don't, I will be tempted to agree with hon Dene Smuts who issued a statement to say, and I quote, "during the long deliberations on this Bill you are undergoing a process of philabastering which you have long pronounced that you will delay this Bill through this process. This is not Washington, hon Ambrosini, this is not Rome, this is South Africa.
I honestly appeal to the member to withdraw because the members have done sterling work. This is abuse of the parliamentary process. I urge the members to vote for this Bill. I thank you very much. [Applause.]
Thank you, hon Minister, that concludes the debate on the Bill, unless there is a withdrawal.
A number of amendments to the Bill have been proposed in terms of Assembly Rule 254 and published on the Order Paper in the name of Dr M G Oriani- Ambrosini.
In terms of Rule 254(5)(a) I have decided to recommit the Bill, together with the proposed amendments, to the committee which considered the Bill originally, subject to the re-establishment of that committee.
Unfortunately, you will have to work longer. I now recognise the hon Chief Whip of the Majority Party.
Hon Deputy Speaker, sometimes one thinks that you are dealing with political parties, whereas you are dealing with ad hoc groups which are established from time to time when elections come. Political parties, as they are properly called, would know that sufficient consensus is what produced this Constitution.
The hon Minister correctly said that there is sufficient consensus in this House. On that basis therefore, I'm proud to move:
That the House -
1) notes that the Ad Hoc Committee on the Protection of Information Bill had ceased to exist after it completed its task and reported on the Protection of State Information Bill on 13 September 2011;
2) further notes the decision of the Acting Speaker to recommit the Bill, together with the proposed amendments, to the committee which had considered it originally;
3) re-establishes the Ad Hoc Committee on Protection of Information Bill with the same composition, membership, chairperson and powers;
4) instructs the committee to take into account the earlier work done by, and the proceedings of, the committee, when considering the Bill in terms of Rule 255; and
5) sets the deadline by which the committee must report at 21 November 2011.
Well done, hon Minister and committee members. [Applause.] Agreed to.
Bill recommitted to the Ad Hoc Committee on the Protection of Information Bill.