DA welcomes improvements to Secrecy Bill but constitutional problems remain

The reconstituted Ad Hoc Committee on the Protection of State Information Bill, under Rule 270, must recommend the adoption or rejection of the National Council of Province's (NCOP) amendments to the National Assembly, and may not itself propose amendments not strictly relevant to the NCOP's amendments.

It is clear that the NCOP was determined to achieve constitutionality. The DA endorses in particular the NCOP amendments to the offences of possession and disclosure of classified material. We note that the NCOP amendment is strongly reminiscent of the DA's own proposal to the NA Ad Hoc Committee in August 2011 that possession and disclosure of classified material that reveals unlawful acts should escape criminal sanction.

The NCOP has also taken the advice of Adv George Bizos, who in a submission for the Legal Resources Centre (at point 49) recommended that "a public interest defence does not have to be broad or general, but...may require strict conditions and list specific instances where disclosure will be in the public interest". He offered inter alia the example (now included almost verbatim) "where the disclosure reveals criminal activity, including for the ulterior purposes listed in section 47". Section 47 creates the offence of improper classification. Adv Bizos argued (point 90) for a defence of improper classification.

Under the NCOP amendments, a whistleblower or journalist who reveals criminal activity is now not committing an offence. Should any prosecution nevertheless be instituted, a defence of improper classification is now explicitly available where information was classified in order to conceal breaches of the Corruption Act or any other unlawful act or omission, incompetence, inefficiency or administrative error, inter alia.

We also applaud the fact that the NCOP amendments not only stop all attempts to trump or go behind Promotion of Access to Information Act (PAIA), but have actually expanded the PAIA override for the mandatory release of information. Where the constitutionally mandated PAIA only requires the release of information revealing a substantial transgression of the law, information showing "any" contravention must now be released.

In view of these and other advances, it is regrettable, therefore, that the NCOP did not see fit to amend the espionage provision. Espionage should be an offence based on intention, but negligence has been retained as a standard for liability. Because new or reintroduced amendments about the meaning of "knowledge" in the definitions section appear to be aimed at the espionage clause and are therefore strictly relevant to the NCOP amendments (under Rule 270) we will seek to reopen this debate. The espionage clause will otherwise crash constitutionally for vagueness and severity of punishment, as Adv Bizos has warned.

We note that the worst of all clauses - section 49, which we dubbed the Chikane clause in view of the Rev. Frank Chikane's warning that a corrupt intelligence service would be the worst threat to state security - has been deleted altogether. Perhaps the NCOP intention when retaining negligence for espionage was to criminalise negligent action by sworn spookery staff. But then the Bill should say so.

The DA's main constitutional objection remains unresolved: Provincial archives are the exclusive legislative competence of Provinces. The Western Cape has passed its own Provincial Archives and Records Service Act to govern public records. Record keeping in SA is supposed to be governed by the National Archives Act, but the intelligence services have been in charge ever since the Mandela Cabinet adopted the Minimum Information Security Standards (MISS).

In an attempt to keep the MISS system going for record keeping, even though it can no longer be used to classify material, the Bill creates a category called "valuable information". None of the relevant provisions have anything to do with security or classification. Parliament should not be legislating where provincial competences prevail. At minimum, the bill should have been tagged as a Section 76 Bill, and could be procedurally unconstitutional.

Statement issued by Dene Smuts MP, DA Shadow Minister of Justice and Constitutional Development, March 13 2013

Click here to sign up to receive our free daily headline email newsletter