Submission to National Council of Provinces

Re: NCOP Public Hearings on Protection of State Information Bill

26 March 2012

1. Introduction

An Ad Hoc Committee of the National Council of Provinces ("NCOP") was established to review the Protection of State Information Bill ("Bill"). Between 31 January and 1 March 2012 the NCOP embarked on a series of provincial consultations on this proposed legislation. Through this public participation programme, including public hearings in all nine provinces, the NCOP sought to provide citizens with an opportunity to make written or verbal input on the Bill.

Throughout the period of consultation, a number of reports have emerged from different meetings where R2K structures and affiliate organisations were present that suggest the principles of public participation were not adhered to, that people wishing to object to the Bill were undermined, and that presiding officers of Parliament conducted themselves improperly.

Members of the Right to Know Campaign ("R2K") attended the hearings in Gauteng on 14 February 2012. We attach affidavits from several R2K members and summarise their submissions below.

2. Right to Know Campaign

The Right2Know Campaign (R2K) is a nation-wide coalition of people and organisations opposed to the Protection of State Information Bill in its current form. Our campaign is coordinated by working groups in the Western Cape, Gauteng, KwaZulu-Natal and more recently the Eastern Cape, as well as a national working group consisting of representatives from key civil society organisations, community groups and social movements across the country.

3. Hearings in Gauteng

The NCOP held hearings on 14 February 2012 at the West Community Hall in Mamelodi, Tshwane and at the Sharpeville Community Hall in Sharpeville, Sedibeng.

Members of R2K attending the Sharpeville hearing observed the following:

3.1 The Bill

People raised a number of substantive objections to the Bill, including:

• Provisions in the Bill which may lead to over-classification and excessive secrecy, and which undermine transparency and accountability
• The broad scope and harshness of penalties contained in the Bill
• The lack of adequate whistleblower protection and public interest defence

3.2 Notice

Most people attended the hearing without knowledge of the purpose of the hearings, the Bill itself or the Parliamentary processes. Many heard on 13 February (the day before the hearing) over a loud hailer that "Parliament wanted to talk to them". The reasons for the call where unclear, but they were just told to come to a meeting the following day. People were not given an agenda of the hearings and crucially, no copies of the Bill were supplied to people before, during or after the hearings.

3.2 Access

People who were not affiliated with political parties were not assisted with transport to attend the hearing. Accordingly many people were unable to attend the hearing who lived beyond walking distance from the venue. On the other hand, members of political parties were bussed in by Parliament to attend the hearing.

3.3 Participation

The hearings were scheduled to start at 8h30 and finish at 16h30 on 14 February 2012. On the day in fact the Sharpeville hearing was severely curtailed, starting after 9h30 and finishing at 13h30. Consequently many participants were unable to voice their opinions on the Bill because they simply ran out of time.

The Chairperson explained that public consultations are not for asking questions, but that it was only a forum to suggest improvements to the Bill, which would be noted by the panelists and recorded. There would therefore be no debate on the contents of the Bill.

She went on to say that general questions about the Bill would not be given answers by the panelists, but that they would only listen to specific amendments. No translation was allowed, to the prejudice of many who were not fluent in English.

3.4 Bias

The Chairperson constantly interrupted and allowed supporters of the Bill to interrupt opponents of the Bill, by heckling, booing and otherwise preventing them from speaking audibly. Opponents of the Bill were vilified as ‘spies' or ‘agents' funded by foreign governments. On the other hand the Chairperson allowed members of the ANC ample time to voice their support for the Bill without being interrupted. The Chairperson generally gave preferential right of audience to supporters of the Bill by preventing many members of R2K who wanted to take the floor, from doing so.

3.5 Misrepresentation

A representative from the Ministry of State Security introduced the contents of the Bill and explained that the Bill is designed to protect leaks of information to foreign States. He explained that the Bill would be useful to persons who lose copies of personal documents like ID documents or birth certificates. He stated that classification is not a means to deny information and that the Act is not meant to override PAIA. He explained that the Bill would not punish whistleblowers, unless the information is classified. He suggested that upon an application for information the declassification of information that should be released would be immediate. We submit that all of this is either misleading or false information about the true nature and effect of the Bill.

4. Conclusion

The restrictions on access to and meaningful participation in the hearings imposed by the NCOP are unreasonable and incompatible with the spirit of open engagement promised by the NCOP in its programme of public engagement. The lack of information given to people about the Bill, the Chairperson's party-political bias and misrepresentation of the Bill restricted people from meaningfully engaging with the process. The NCOP hearings were unfair and constitute unlawful administrative action which adversely affects the constitutional rights of citizens.

These experiences correspond with reports from members of R2K attending hearings in the Western Cape on 31 January 2012, in the Eastern Cape on 2 February 2012, in the Free State on 7 February 2012, and in KwaZulu-Natal on 16 February 2012, as well as corresponding with reports from affiliate organisations attending hearings in North West on 21 February 2012, Mpumalanga on 23 February 2012, and Limpopo on 28 February 2012. We are in the process of drawing together affidavits from other hearings that reflect similar experiences (see appendix). R2K submits that there is a growing body of evidence that the provincial consultations were organised and chaired in a manner not fitting of a presiding officer of Parliament, and which fostered partisan and unfair practices, undermining the principles of public participation.

R2K submits that these matters are central to the impartiality and credibility of the public participation process. R2K calls for an investigation into possible breaches of Parliamentary conduct during these provincial hearings, the report of which must be tabled before the ad hoc committee before it concludes its deliberations. R2K calls for any and all transcripts, video recordings or audio recordings of provincial hearings to be made available to the public.

Sincerely,

Ms. Jayshree Pather

On behalf of the R2K National Working Group

Issued by Right2Know Campaign, March 26 2012

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