Last week members of the National Council of Provinces (NCOP) Ad Hoc Committee on the Protection of State Information Bill (dubbed the secrecy bill) reviewed the controversial legislation clause by clause, with each party provided an opportunity to propose amendments to the legislation.
While changes were proposed by various members of the committee, the ANC's majority (10 members compared with 2 members from the DA and 1 member each from COPE, IFP and ID) on the committee means that it will have the final say on any amendments passed by the committee before the bill is returned to the house for a vote. Given that Mr Matilia, an ANC member on the committee, commented that ‘proposals of other parties would be rejected' in respect of the offences and penalties section of the legislation, it seems that there will be little room for other parties to make headway with their proposed changes to the bill. Any changes to the bill are therefore likely to come from the ANC camp.
So what are the changes proposed by the ANC?
A number of positive changes to the legislation have been proposed by the ANC, although many still fall short of what would be required to rectify the potential threats posed by the bill:
• While the bill only grants the security services the power to classify information, it also allows the Minister, without consultation, to extend the power of classification to any organ of state. This provision is problematic as it allows the Minister to extend the operation of the classification provisions within the bill beyond those public bodies that should properly be dealing with national security. Although the ANC has not proposed to delete this clause in its entirety, it has proposed amendments to relevant definition sections that would prevent the Minister from providing classification powers to municipalities.
• In order to be classified under the bill, information must relate to national security. The definition of national security is therefore central to the operation of the bill. One of the concerns with the current definition is that it is inclusive, rather than exhaustive. This means it would be possible for an organ of state to classify information they claimed would cause harm to national security that is not currently envisaged in the bill. The ANC have proposed to amend this by making the definition exhaustive by replacing the word ‘includes' with ‘means'.
However, even with the proposed amendment, the definition of national security will remain unnecessarily broad, allowing for the classification of information unrelated to national security. In order to resolve this, the provisions allowing for the classification of a ‘state security matter' and the ‘exposure of economic secrets vital to the security of the republic' must be removed.
• The ANC have also proposed to amend the definition of state security matter from an inclusive to an exhaustive definition. However, the definition remains so broad that it would still allow for the classification of many matters unrelated to national security, such as a contract between the State Security Agency and the organisation engaged to clean its premises.
• The time in which a body must determine whether to declassify information on receiving a request for access to the information was previously uncertain as the bill referred to a ‘reasonable time'. The ANC have proposed to amend that clause to require such a decision to be made within 14 days. While this is a welcome amendment, the time period is confusing given that a related clause allows 30 days for determining whether certain information in the public interest can be declassified. The new time period proposed is also inconsistent with the Promotion of Access to Information Act (PAIA), which allows public bodies 30 days to consider requests for information.
• Previously offences aimed at safeguarding information from foreign states and those engaged in hostile activities allowed conviction of individuals without actual knowledge that the prohibited harm would result. They allowed conviction on the basis that the person ‘ought reasonably to have known' that the harm would result. The ANC have proposed to delete that phrase from the provisions, allowing for conviction only where the person had an intention to commit the prohibited act.
• Additional defences in respect of the unlawful and intentional disclosure of classified information have been proposed which would allow those who disclose information that reveals criminal activity to defend any prosecution. However, the provision applies only to the espionage provisions of the bill, still allowing people to be prosecuted for failing to return such information to the police, for receiving that information, for hostile activity offences or the disclosure of a state security matter.
• Offences related to the improper classification of information by public officials have been extended to include not only attempts to conceal breaches of the law but also to conceal incompetence, inefficiencies and administrative errors.
• In accordance with clause 1(4) of the bill, restrictions on access to information within the bill prevail over the release of information under PAIA, the constitutionally mandated legislation which facilitates the right to information. Despite calls for the government to remove this provision to maintain the supremacy of PAIA in regulating access to information, the ANC have proposed an amendment to the clause which will leave the determination of matters of conflict to the courts. The ANC have proposed to remove the reference to PAIA from the clause, which would leave both the bill and PAIA with provisions which state that each prevails over the other in the event of a conflict in accessing information. The directly conflicting provisions will leave requesters and public officials in the dark until such time as the court can be called upon to determine the issue. Whether the creation of directly conflicting principles reflects a deliberate intention or a misunderstanding of the application of PAIA is unclear.
• The bill contains many harsh and unreasonable criminal provisions that apply to ordinary citizens who should ordinarily bear no obligation for the safeguarding of the state's secrets beyond acts of espionage and similar acts of malicious intent. For this reason, the public has been calling for a public interest defence, that would allow those charged with a criminal offence to defend their actions in respect of retention, disclosure or publication of classified information on the basis that they did so in the public interest. No public interest defence has been proposed by the ANC and the party has continued to make it clear that they will not support such a clause. In response to a public interest defence proposed by the Democratic Alliance, Ms Ntwanambi of the ANC reportedly said "the ANC would not support the public interest defence."
• There are still numerous problems with the classification provisions in respect of which no corrections have been proposed:
the test for classifying a document as top secret currently constitutes no higher threshold than the requirement to classify information as secret;
organs of state can make classification decisions based on categories of information, rather than individual documents;
there is no obligation on the person classifying the information to record their reasons for doing so, officials will therefore not be accountable to their superiors and the review panel and courts will not be able to properly determine whether a classification was improper;
reviews of classification only need to be undertaken every 10 years;
requesters denied access to classified information are not entitled to apply to the Classification Review Panel for a review of a decision not to declassify information.
The ANC have also proposed a number of amendments which will have no substantive effect and appear instead to be an attempt to appease critics of the bill:
• references to ‘secrecy' shall be changed to ‘protection of state information';
• types of actions that will constitute a breach of the law, in particular corruption, will be specifically listed in relevant provisions; and
• the general principles in chapter 2 will be reframed to include what may be perceived as more palatable language.
The Department of State Security must now consider the issues raised by the ANC and other parties and provide feedback to the committee, who now has until the end of June to complete its work on the bill.
Review the bill with the ANC's proposed changes.
Read SAHA's submission on the bill.