Key defence clause now built into deplorable bill

THE Parliamentary Monitoring Group said in its report on this week’s meeting of the adhoc committee on the Protection of State Information Bill that chairman Luwellyn Landers appealed to members in a moment of exasperation to leave the final proofreading to the office of the chief state law adviser.

“He thought that it was not necessary to become obsessed with perfection,” the PMG reported.

That sentiment pervades the analysis of our South African reality: perfection is beyond our aspiration and, increasingly, we settle for second or even third best.

When a friend survives a mugging or home invasion, we say: “You’re lucky. It could have been so much worse”; as roads crumble, we congratulate ourselves on finding a new route to work and dismiss the old favourite; and when parliament improves an appalling piece of legislation we cheer our lucky escape.

So it will be when the National Assembly takes the final vote tomorrow on the so-called secrecy bill and sends it off to President Jacob Zuma to sign into law.

In the absence of any mechanism to formally count the hours that go into any piece of legislation, I would hazard the guess that this is the most debated, amended and perhaps improved draft law to come out of parliament since 1994.

It is barely recognisable as the proposal that then Minister of Intelligence Ronnie Kasrils – later to become one of its harshest critics – made to the cabinet in 2008. It is quite different also to the version that State Security Minister Siyabonga Cwele re-submitted, and even to the draft which the National Assembly sent across to the National Council of Provinces in 2011.

Democratic Alliance MP Dene Smuts, who probably deserves the most credit for its improvement over the past three years, told me yesterday she was even willing now to stop calling it “the secrecy bill”.

Though she voted in the ad hoc committee to approve the latest changes, she said she would vote against the bill in the National Assembly. She said the final draft wrongly gave the Minister of State Security jurisdiction over unclassified information rated “valuable”, a task the constitution gives to provinces.

“The intelligence services and their minister, who have fought access to classified information every inch of the way through the legislative process on the bill, and who have lost the fight, are not willing to let their unlimited access to all other information go,” she said.

Steve Swart of the ACDP – also, with the IFP’s Mario Ambrosini, a stalwart of the struggle for transparency – agreed it was so much improved that, although he expected to vote against its adoption, this would now be on only two grounds. One was a highly technical issue, first raised by Smuts, concerning its passage through parliament. The other, a clause that reverses the onus of proof when someone leaking state information is charged with espionage.

Right2Know, which has led the civil society campaign against the bill, still regards it as unacceptable: “The bill would still criminalise ordinary citizens for possessing classified information – even information already in the public domain. Any ordinary citizen accessing a leaked document in the public domain could face jail penalties of between five and 25 years.

“The bill promotes a concept of national security that is still broadly defined and open to abuse, which will risk over-classification by state and private bodies,” R2K said this week.

The South African National Editors’ Forum remains deeply concerned about the effects this law would have on investigative journalism, and media lawyer Dario Milo, who wrote many of the opinions used during negotiations on the bill, wrote in an analysis of the final draft that it remained quite unacceptable.

“The NCOP’s amendments – particularly that it is a defence to the crime of disclosing classified information to show that the disclosure reveals criminal activity – are steps in the right direction. But the bill still falls far short of the constitutional standard required,” he wrote.

Milo recalled the celebrated US judgment that allowed the New York Times and Washington Post to publish the “top secret” Pentagon Papers, which revealed how successive US governments had lied to the public about the Vietnam war.

“Paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.... Far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended revealing the workings of government that led to the Vietnam war,” Justice Black ruled.

What parliament is likely to approve tomorrow is a bill that will allow police, the defence force and national intelligence agencies – and no-one else without parliament’s approval – to classify information as secret where it is in the genuine interest of national security to do so.

Anyone who leaks, accepts or possesses such a classified document without the right to do so will face severe penalties, including mandatory imprisonment.

But in a version of the public interest defence that was at the centre of the debate about this bill, anyone who uses such information and is prosecuted for it will now be able to justify doing so if the secret reveals any “criminal activity”.

The DA and some other opposition parties are likely still to ask President Jacob Zuma to seek the Constitutional Court’s approval before he signs it and it may be faulted on an important procedural technicality. But this is likely to be the law we get to live with.

It will offend the constitutional principle of openness to a degree most of us, certainly in the media, will deplore. But, hey, it could have been so much worse.

Brendan Boyle is editor of the Daily Dispatch