The Congress of South African Trade Unions (COSATU) notes with concern that the Protection of (State) Information Bill is currently being considered by the National Assembly (NA) in Parliament. According to previous African National Congress (ANC) Parliamentary Caucus media statements published on 27 September and 18 October 2011, the Bill was withdrawn from the NA’s programme in order to allow the ANC hold a countrywide public engagement process.
We were supportive of this process only to the extent that we understood it would supplement, rather than substitute, the parliamentary process and that it would enable a more inclusive process of addressing the serious fundamental problems that COSATU and a range of other civil society organisations have consistently identified in relation to the Bill.
However, the Bill is now again before the NA without a single public meeting having been convened in the provinces as promised, and in respect of which we had intended engaging through our provincial structures. The version of the Bill that is being considered by the NA therefore remains unchanged from that which was adopted in September by the Ad Hoc Committee that processed the Bill.
We acknowledge that the Bill finally adopted by the Ad Hoc Committee has undergone numerous drafting changes, which some Committee members argue have addressed civil society concerns. We have studied the revised Bill and are firmly of the view that our original fundamental substantive concerns remain largely unaddressed. We note some of these in summary below:
- The scope of the revised Bill remains excessively wide, with the potential for just about any organ of state or National Key Point (including private institutions) to be included on the basis of a Ministerial discretion. There is immense potential for conflicts of interest to influence decision-making and illustrates the potential breadth of the Bill’s impact on rights of access to information and the promotion of the principles of transparency and accountability;
Serious definitional and interpretation problems remain in the Bill, some of which include:
- The varying degrees of ‘harm’ arising from possession or disclosure of state information which determines the stringency of the security classification and associated restrictions and criminal penalties. The potential for subjective interpretation in the absence of proper guidelines creates ample space for abuse of the process of classification;
- The definition of ‘national security’ is still overly broad and moreover includes problematic factors, such as the ‘exposure of economic, scientific or technological secrets’ and acts that would have diplomatic implications for “carrying out …responsibilities to any foreign countries and international obligations." Public interest must necessarily overlap with a correctly construed definition of “national interest, and in many instances should even override the protections for diplomatic relations or against economic harm especially where it is necessary to expose serious irregularities or corruption.
- The Bill contains numerous provisions that undermine rights of access to information. Quite problematically we note that its provisions state that it will trump the provisions of ANY other Act of Parliament that contradicts it. This would suppress rights of access to information whether these arise from the Promotion of Access to Information Act or even other laws such as the Labour Relations Act;
- The Bill criminalises possession of classified information by an unauthorised person. It also states that any person who “conspires with,... aids, abets, induces or …counsels another person to commit an offence is guilty of an offence”;
- This would have the consequence of criminalising the obligations that trade union officials and advice offices have to assist whistle blowers with advice or blow the whistle on their behalf where a person wishes to remain anonymous;
We note that the Office of the ANC Chief Whip in a media statement on 7 November 2011 has expressed the view that the revised Bill has been ‘aligned’ with whistle blower protections under the Protected Disclosures Act (PDA) and Companies Act. To the contrary our assessment is that this affords little meaningful protection from the dampening effect that the Bill will have on encouraging the exposure of corruption for the following reasons:
- Currently the PDA provides protection to employees only and therefore excludes other individuals such as independent contractors and suppliers or recipients of services. The Companies Act would apply to state-owned companies but not government departments. This means that entire categories of whistle blowers would be without protection;
- Further neither of these Acts deals with information that has been classified, and would not render protection for a disclosure if the access and possession of the information was not authorised in the first place. Criminal penalties would be applicable regardless of the seriousness of the irregularity that is exposed by an unauthorised disclosure;
- The Bill allows for the absolute exclusion of any whistle blower protection for the disclosure of information classified as a state security matter by intelligence and security agencies, regardless of public interest considerations;
- COSATU is unequivocally opposed to the protection or promotion of acts of espionage or similar activities that are hostile to the state. However, we are concerned that relevant provisions in the Bill are capable of such broad interpretation that it would have the effect of imposing criminal responsibility against individuals who disclose information in the public interest and for which ordinarily crimes of such a nature should not be applicable. For example, section 38(1) (a) makes it an offence to merely “make available” top secret information that would prejudice national security, which we believe could easily be used to constrain legitimate whistle blowing.
- Publication of classified information using any form of mass media would be prohibited unless the classification is lifted. Notwithstanding problems of bias and lack of balanced reporting in the mainstream commercial media, it remains one of the broadest forms of disseminating and implementing access to information for the masses. Public awareness is integral to holding state institutions accountable and acts as a check against irregularities;
- In addition to addressing the substantive concerns above, we remain convinced that there is a need to introduce a public interest defence that would maintain a balance between the restrictions legitimately placed on state information against disclosures and media publication of such information in the public interest.
We note that there have been numerous conflicting reports in the media relating to both the further processing of the Bill and the possibility of further amendments to accommodate substantive concerns, such as the inclusion of a public interest defence for whistleblowers and the media. Accordingly COSATU will be seeking a further meeting with the ANC to clarify the process both in relation to Parliament and the provincial public consultation process that appears to have been abandoned. This is in addition to the substantive concerns we have identified.
Further noting the serious problems that continue to plague the process around the Bill, we believe that it would be more advisable to withdraw the Bill from Parliament and refer it to the South African Law Reform Commission (SALRC) to investigate how state information may be appropriately regulated.
Over and above this COSATU will continue to pursue its concerns through the parliamentary process. To this extent we welcome the assurances made by the Deputy President, Comrade Kgalema Motlanthe, at a meeting with SANEF on 8 November that the Bill will not be ‘rammed’ through Parliament. However, should the Bill that is eventually passed by Parliament still contain fundamental problems we will have no option to revert to our earlier undertaking to pursue the matter through a constitutional legal challenge.
For more information contact:
Congress of South African Trade Unions
Tel: +27 11 339-4911/24
Fax: +27 11 339-5080 / 6940
Mobile: +27 82 821 7456
For more about the Congress of South African Trade Unions, refer to www.cosatu.org.za.
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