Whither the Protection of Information Bill?
On Friday 22 October 2010 Dr SC Cwele, the Minister of State Security, did something very unusual. He returned to the ad hoc committee of parliament to make a second submission to it regarding the Protection of Information Bill. This follows a lively exchange on 17 September 2010 when a 22 page memorandum accompanied the first visit by the minister to the committee. This time a 13 pager was tabled and there was a press briefing afterwards during which the chair of the committee suggested that there are no parliamentarians so stupid as to approve an unconstitutional bill deliberately. It is to be hoped that he is right, and that the bill will be further shorn of its irrational, bizarre and unconstitutional features, all of which have been drawn to the attention of the committee by the scores of institutions aligned to the Right2Know campaign and by those who have made oral and written submissions to it.The good news is that the Minister has now unambiguously confirmed that his recommendation to the committee is a "total removal from the Bill of 'national interest' and 'commercial information' to ensure clarity, precision and sticking to legitimate aims". Although this is but a small step away from the grosser aspects of the unconstitutionality of the Bill, it is at least a step in the right direction.
The Minister has also acknowledged, albeit tacitly, that the onus will be on the government to satisfy the courts, that the proposed limitations (of the rights of freedom of expression and to access to information) are the type of limitations that are constitutionally permissible. Although he referred to what he called the "international legal basis for the limitation of the right of freedom of expression, which involves the right to access, disseminate and receive information", the Minister would have done well to stay closer to home and study our own Bill of Rights which guarantees freedom of expression and the media and also, separately, the right to access to information.
These important human rights may, according to the limitation section of the Bill of Rights "be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including - the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive measures to achieve the purpose. Except in these ways, or in any other provision of the constitution, no law may limit any right entrenched in the Bill of Rights.
The other provision of the Constitution which applies is section 198 which sets out the principles governing national security. Of relevance is that our national security must reflect our resolve "to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life".
The truth is that there has been no proper, constitutionally compliant protection of information law relating to our national security for the past 16 years, yet we have survived, some may say thrived, as a nation without it. This would suggest that the least restrictive measures possible to achieve the purpose of the new legislation are the appropriate ones.
It is certainly so that all states have their secrets, and that it is appropriate to protect information that is properly classified as secret. Why this process can not be kept in the hands of those charged with state security, instead of being spread across all spheres of government in what will become a vast and unmanageable net, the Minister and his minions have not explained. Critics of the bill have been accused of hysteria and emotion. Unfairly so. The issues raised by the critics are important, the purpose of the bill murky and the methodology in formulating it, as used thus far, questionable.
The minister insists that "we are legislating for real problems and are not seeking to cover up corruption".
While the Minister has taken a stab at answering the question "What information do you seek to protect?" he is not specific about the "real problems" that he is proposing be addressed in the provisions of the Bill. His assurance of not wanting to use the Bill to mask corruption rings hollow.
Nearly a third of the members of the NEC of the ANC have been on the receiving end of criminal investigations in their time, all post liberation. At its conference in Polokwane in 2007 the ANC resolved that the country's only independent and successful corruption busters, the Scorpions, be dissolved urgently and laws were passed to make this happen. The allegations of massive wrongdoing, irregularities and corruption in the arms deals remain as an albatross around the neck of the probity of the ANC. In 2009 the acting leader of the NPA, Adv M Mpshe, was inveigled into withdrawing over 700 charges of corruption against Jacob Zuma on the flimsiest of pretexts that will not withstand proper legal scrutiny, thus clearing the way for his ascent to the Presidency. The person convicted for corrupting the President, Schabir Shaik, has been granted medical parole on the basis of his terminally poor health in circumstances that are challenged by opposition parties. His brother Chippy is alleged to have received a bribe of $3 million from German arms dealers. The new National Director of Public Prosecutions, Menzi Simelane, whose appointment is under review because of his mendacity, lack of independence (and also experience), has squelched all proceedings against Fana Hlongwane despite the High Court having been satisfied, on a prima facie basis, that massive bribes were paid to him. The Hawks have closed down the arms deals investigations, lacking in will, skill and capacity. Our last chief of police has been convicted of corruption and his successor is under investigation for corruption too. Both are ANC politicians. The toothless Independent Complaints Directorate of the police is to be replaced by a body to be called IPID which will be independent of the police but not properly institutionally independent as required by the constitution. The teeth given to it will turn out to be ill-fitting dentures. Tender irregularities are endemic in the public enterprise sector and at all levels of government. Whistle blowers take their lives in their hands, fatally in some cases. Some of the Travelgate fraudsters, those that did not get away with it, have received disgracefully light punishment and none have been fired for their calumny. Professor Kader Asmal complains that there are corrupt individuals in the ANC and bemoans the fact that only one MP has been jailed since 1994 - Tony Yengeni, for lying to parliament about his acquisition of a Mercedes 4X4. He is back on the NEC. The ANC invests in Hitachi Power Africa apparently bringing only political connectivity and BEE status to the table; a questionable tender award is made by Eskom so that a part of the electricity tariff increase will find its way into the coffers of the ANC. In this way all electricity consumers will become involuntary ANC donors.
In all these circumstances, a little more than a bland assurance that "we...are not seeking to cover up corruption" is required.
Even after the second submission by the Minister, the Bill remains deeply flawed and needs to be reconsidered thoroughly. The security establishment should be allowed to classify genuine secrets as a matter of national security; a public interest defence should be available to investigative journalists whose sources leak evidence of corruption to them and a viable, properly reviewable system of classification should be devised. The alternative is a challenge to the constitutionality of the Bill.
Paul Hoffman SC
25th October, 2010
