In making his second submission to a parliamentary committee on the Protection of Information Bill, Minister of State Security Siyabonga Cwele defended the proposed legislation as being in line with the South African Constitution, International Human Right’s Charters and Conventions and international best practice.
The Minister elaborated on efforts “to ensure that any… legitimate grounds for the limitation of access to information are not abused for hiding wrong-doing, corruption, maladministration, inefficiency and incompetence.” Minister Cwele stressed his request to the ad-hoc committee to make “sentences against those in the public service who would want to abuse the classification system deterrent and equal to the severity of the damage.” He also emphasised that what constitutes “national security” under the bill is “clear, precise and limited” to avoid abuse.
Regrettably Media Monitoring Africa (MMA) remains unconvinced. These are welcome words from the Minister of State Security, but his recent actions and those of his Ministerial colleagues have seriously undermined the credibility of his suggestion that information will only be “classified” under limited and justifiable circumstances. Minister Cwele, and later the State Security Agency, recently refused to supply a copy of the Minister’s first submission to this same ad-hoc committee. The reason given was that “disclosure could reasonably be expected to cause prejudice to the defence and security of the republic.” This claim was made despite the fact that the submission presentation was made in public, that its contents was widely reported, and that a transcript and recording of the submission were available online. (See http://www.facebook.com/mediamattersza, entries on October 5th, 12th and 13th 2010)
Similarly the refusal of Defence and Military Veterans Minister Lindiwe Sisulu to provide details of flights undertaken by the air force for President Zuma, on the grounds that the information was “classified”, is another example of information that had been made available previously and was now deemed too sensitive to release. MMA is deeply concerned that such information is already being with-held without any clear or understandable justification. “It is ironic that the language being used to justify the suppression of information already echoes that contained in the Protection of Information Bill” said MMA Director William Bird, adding that “this critically undermines assurances that are being offered by Minister Cwele that the classification of information under this Bill will not be abused”.
In his submission to Parliament’s ad-hoc committee, Minister Cwele also stood firm on his position that “public interest” should not be a defence to publishing information “classified” under the Bill. His reason being, that there is already a “public interest override in the Promotion of Access to Information Act, which is acknowledged in the Bill. It is of concern that the above mentioned refusal by the State Security Agency to provide access to Minister Cwele’s earlier submission was refused following an application under the this same Promotion of Access to Information Act.
In a recent presentation, Wits Law Professor Iain Currie agreed that Section 46 of the Promotion of Access to Information Act provides for a public interest override, but crucially he argued that it is unconstitutionally narrow. Professor Currie suggested that this “unconstitutional narrowness” needed to be fixed in order to provide adequate protection.
MMA believes that there is a real fear that this Bill, if enacted, will be used to hide information that government Ministers and Civil Servants may view as embarrassing, damaging or politically difficult. This fear has been heightened by the recent actions of Minister Cwele himself and of his counterpart in the Ministry for Defence and Military Veterans. Unless there is a real and effective way for people to access and publish information that “is in the public interest” this proposed legislation would violate rather than protect the rights of South African citizens.
According to the Security Minister “those who continue to argue against the Bill…are basically of the view that South Africa has no legitimate national security to protect.” This statement is disingenuous, untrue and demonstrates that the Minister is not listening. Minister Cwele has more to do to demonstrate that this piece of proposed legislation will not become a Secrecy Bill.