SECOND SUBMISSION BY THE MINISTER OF STATE
SECURITY, DR SC CWELE (MP) TO THE ADHOC
COMMITTEE ON PROTECTION OF INFORMATION
BILL

22 OCTOBER 2010

Honourable Chairperson of the Ad-Hoc Committee;
Honourable Members of the Committee;
Fellow South Africans;
Ladies and Gentlemen.

INTRODUCTION

Today, we present a second submission of our proposals in response to the Public Hearings and public debate on the Protection of Information Bill, 2010 [B6-2010]. In this installment, we would like to focus our input on the guiding principles that inform the approach we have adopted in relation to the Protection of Information Bill and the international best practice that underwrite it. Secondly, we would like to reiterate what information is targeted for protection by the Bill, which would be followed by some case studies of comparable lessons from some of selected democratic dispensations and round it up with some concluding remarks.

GUIDING PRINCIPLES FOR THE BILL

The approach we have adopted towards this Bill is underwritten by the International Covenant for Human Rights and European Covenant on Human Rights. It is also in line with the African Charter on Human and People's Rights of our inter-governmental organization, the African Union.

These have produced a substantive international jurisprudence on national security matters and access to information.

The right to freedom of expression is enshrined in a range of international and regional treaties and instruments which bind various Member-States including South Africa. These include Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which codifies the Universal Declaration of Human Rights, and Article 10 of the European Convention on Human Rights (ECHR). Freedom of expression also enjoys recognition in the African Charter on Human and Peoples' Rights and the American Convention on Human Rights. Each of these instruments also provide for the limitation of this right on the basis of national security.

The International Covenant on Human Rights provides as follows on national security:

Article 19(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print.
Article 19(3) [Freedom of expression] may ... be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

a) For respect of the rights or reputations of others; and

b) For the protection of national security or of public order, or of public health or morals.

Since we have now established the international legal basis for the limitation of the right of freedom of expression, which involves the right to access, disseminate and receive information, ideas, views and knowledge, let us turn to the international best practice on how these right may be limited. In this regard, we would like to highlight that the "three part test" is the norm.

This three part test demands that the limitation must:

·         be prescribed by law and such law must be clear and precise;

·         be genuinely directed towards achieving one of the legitimate aims of the treaties which provides the basis for the limitation, namely, national security, or "public order" or "public health or morals". If the ground is the protection of national security, then the limitation must advance or contribute towards national security;

·         be justifiable and necessary in a democratic society.

Although we remain convinced that the original version of the Bill conformed to this three part test, we have since reviewed it and recommended that certain provisions be deleted to better conform to this test. In this regard, we are referring to the total removal from the Bill of "national interest" and "commercial information" to ensure clarity, precision and sticking to legitimate aims.

In addition, we have put prerequisites for classification, to ensure that any of these legitimate grounds for the limitation of the right of access to information are not abused for hiding wrong-doing, corruption, maladministration, inefficiency and incompetence in the public service.

We have already indicated in the previous presentation what the two part classification test is and needs no repetition today.

The second aspect that we considered following the Public Hearings, although we are neither endorse it nor are party, is the Johannesburg Principles on National Security and Access to Information (hereinafter referred to as the Johannesburg Principles). Drawing on international and regional case law, the Johannesburg Principles were defined by a group of experts convened by ARTICLE 19 in October 1995. Their aim is to clarify the meaning of - and the scope of justifiable limitations upon - the right to free expression as contained in various international conventions and covenants.

The first principle of the Johannesburg Principles reiterates the three part test and explains it in detail. Since we have already dealt with this principle, we will now focus on the second principle that we would like to quote in detail. It provides as follows:

Principle 2: Legitimate National Security Interest

(a) A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrable effect is to protect a country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government.

(b) In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.

The provisions in the Bill conform to the above mentioned principle 2 of the Johannesburg Principles. Having looked at international best practice, it is clear that these best practices are in line with the provision of our own Constitution.

Section 36, dealing with the limitation of rights, reiterates these best practices and we have not deviated from our Constitution, International Law and best practice. Some may argue that this is just an empty assertion. Let us turn to the information that we seek to protect and for which we are seeking the limitation of the right of access to information.

In light of the above, those who continue to argue against the Bill, following our proposals on 17 September 2010 and today, are basically of the view that South Africa has no legitimate national security to protect. Clearly, this is far from the truth.

WHAT INFORMATION DO WE SEEK TO PROTECT?

During the first submission of this presentation, we argued that we were recommending the Canadian approach of listing issues of concern to national security as the advisable approach in our considered opinion. We argued that this approach ensures that the definition's reach is clear, precise and limited. We indicated that we wanted to:

• protect legitimate national intelligence structures sources;

• legitimate operational methods, doctrine, facilities and personnel of security structures;

• sensitive confidences in international relations;

• ongoing investigations of state security structures;

• details of criminal investigations and legitimate police and law enforcement methods; 9

• economic, scientific or technological secrets vital to the Republic's stability, security, integrity and development.

The above wording is similar to that used in the Canadian Security of Information Act found in Sections 24-30 of the Anti-Terrorism Act which extensively revised their rarely used and old Official Secrets Act inherited from the United Kingdom. These changes were aimed at responding to the new threats of economic espionage, non-state actors whose impact far outweighs their size and means.

We also seek in national security to:

• negate hostile acts of foreign intervention;

• terrorist and related activities;

• information peddling;

• espionage; and

• unlawful acts against the constitutional order.

The above reflect not just South Africa's concerns but that of other developed and developing countries. I have therefore tasked the Ministry staff, working with the State Security Agency, to prepare a briefing which they would present to the Ad-Hoc Committee on how other democratic countries have sought to deal with these issues. For this presentation, suffice to indicate that countries such as Australia, Brazil, Canada, Kenya, New Zealand and Zambia are also grappling with the above challenges. We are therefore not attempting to exceptionalise these challenges.

We are legislating for real problems and are not seeking to cover up corruption. It bears repeating that the abuse of classification is an offense and I would once more request that the Ad-Hoc Committee should make the current sentences against those in the public service who would want to abuse the classification system deterrent and equal to the severity of the damage.

Importantly, the existence of the public interest override in the Promotion of Access to information Act, which is acknowledged by the Bill, enables those who want to expose documents classified to hide corruption or an impending public health problem to do so using legitimate channels

In addition, the Bill is aligned to the Protected Public Disclosures Act which provides that "criminal and other irregular conduct in organs of state and private bodies are detrimental to good, effective, accountable and transparent governance in organs of state and open and good corporate governance in private bodies and can endanger the economic stability of the Republic and have the potential to cause social damage".

What remains hidden in the open is that this Act provides for disclosures to legal practitioners, employers, members of Cabinet or Executive Council, the Public Protector and the Auditor-General just to cover broad categories in the Act. Although this Act deals with disclosure on the basis of public interest, it however does not list the media as a legitimate recipient of information arising from "protected disclosure" initiatives.

Having considered seriously the submission to create a section on defences in this Bill, we remain convinced that conceding to such a demand would be tantamount to shredding this Bill even before it becomes law.

To allow anyone to put national security information in the public domain, with a hope that such action may, in the unlikely event, be deemed to be in the public interest would be simply reckless. It would be just to increase the vulnerability of the Republic, reduce the risk for doing business for our adversaries and put many lives, limbs and property in undue danger.

In short, I will fail in my duty if I concede. Never should the Committee, therefore concede to public interest defence and include such in this Bill, I beg. Here are the reasons.

We have critically studied the reasons why the United Kingdom, the first country to have a public interest defence clause in its Official Secrets Act of 1889, decided against keeping it in their statute books. We are convinced that the reasons that led them to repeal that provision remain valid for us.

In the main, public interest defence made the law unworkable and provided a loophole exploited by many for self-serving purposes. Their efforts unduly undermined national security by unintentionally encouraging the leakage of sensitive information. With the provisions of the Protected Public Disclosure Act, PAIA and public interest access to information aligned in this Bill, adding public interest defence would really be an over-kill.

We have already lowered classification levels from four to three. We have also provided for request for declassification and review of classified information on the basis of public interest.

The UK issued its National Security Strategy in October 2010, which is fresh from the press. In it, it has the following advice to proffer to the British people, which is relevant to the rainbow nation as we consider this Bill. I beg your indulgence as I would like to quote that at length:

Our security and intelligence agencies play a vital role in protecting our country from threats to our way of life. It is inherent in their work that most of it has to be done in secret to protect those who risk their lives for our security, and to maintain the confidence and cooperation of partners overseas. For the same reasons the exercise of oversight, whether by Parliament or through the courts, also has to involve a measure of secrecy. Here too we must strike a balance, between the transparency that accountability normally entails, and the secrecy that security demands... Striking these balances is not always straightforward, and reasonable people can differ on how to do it.

This disposition must be food for thought for us, as a nation! What is our national interest? What are our ends? What are our ways and means to achieve them?

As South Africans would recall, that the country hosted the International Intelligence Review Agencies Conference here in Cape Town in 2006, because we are rated very high in the international list of Intelligence Oversight Systems. We continue to be the leader in the developing world. In the post 9/11 World, we remain the most progressive nation in the way we conduct intelligence and counter- terrorism - within a human rights framework. This position we will continue to defend and advance despite the far-fetched and unfounded claims that we are returning to apartheid.

CONCLUSION

Chairperson, I would like to, once more, thank members of the Ad- Hoc Committee on the Protection of Information Bill for their attention and engagement, those who continue to engage in the public debate and demonstrations for enhancing our work and forcing us to educate the nation on national security matters and intelligence.

South Africa is better for the engagement despite its exploitation by those who have not down rated their own countries following many reversals in the conduct of counter-terrorism outside the framework of human rights. They will be quick to judge us out of context, but we will remain in reality, the best country when it comes to the conduct of intelligence balancing secrecy and openness in a human rights framework set by our national values. We should THEREFORE support our efforts to accommodate rational and reasonable submissions as we are proposing and collectively remain PROUDLY SOUTH AFRICAN!

Thank you one and all!

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