So the Protection of State Information Bill was passed in the National Assembly on Tuesday, despite widespread protests. What now?
In the Doctors for Life case, the Constitutional Court held that the National Council of Provinces NCOP), our second house of Parliament, has the duty to facilitate public involvement, so that different parliamentarians can consider a Bill afresh. This applies to the Protection of State Information Bill. The NCOP has the right to veto the Bill and/or make amendments to it. Anyone can make submissions, both in writing and at public hearings, to the NCOP, whether or not they have made submissions to the National Assembly on the Bill. If the Bill is not vetoed and/or amended by the NCOP, and subsequently signed into law by the President referral to the Constitutional Court, anyone who objects to the law is entitled to challenge its constitutionality in the courts, ultimately, the Constitutional Court. Any provision of the Bill (or Act once it has been passed) can be declared invalid by the Constitutional Court if it is found to be inconsistent with the provisions of the Bill of Rights in our Constitution.
What do we think of the Bill at Gunstons? The press has inclined to reject the entire Bill, largely on the basis that its purpose is to cover up Government corruption or maladministration. But section 14 of the Bill specifically states that classification of government information may not under any circumstances be used to conceal incompetence, inefficiency or administrative error; to limit scrutiny and thereby avoid criticism [or] prevent embarrassment to any person, organisation or organ of state. The real issue is a deeper one – whether government officials would be able to misuse the classification procedure to hide information the public should know, or to victimise whistleblowers. We believe that this is a possibility, but one which needs to be balanced against the positive elements of the Bill.
Most countries protect the confidentiality of certain state information, which allows intelligence services to operate. We do not object to this, but do have a concern that government has not explained why the South African intelligence services need wide-ranging rights to classify information, what the purpose is of this, and who the enemies of South Africa are, from whom the intelligence services are protecting us.
We think the lack of a so-called public interest defence in the Bill may be unconstitutional, as it appears to infringe against the rights to a free press, and to receive and impart information (section 16 of the Bill of Rights). We are aware, however, that in several democratic societies similar legislation does not include such a defence. The Bill contains severe penalties for disclosing classified information. The concern is that a whistleblower or the Press might be prosecuted under these provisions to deter them from disclosing information which is embarrassing to Government or other influential players. A public interest defence would allow the whistleblower or member of the Press to explain why it is in the public interest for the information to be disclosed, in which case they would not be guilty of any of the offences in the Bill. We support such a defence being included in the Bill.