COMPLETE SUBMISSION

INTRODUCTION

The African Christian Democratic Party (ACDP) was represented on the National Assembly's Ad Hoc Committee on the Protection of State Information Bill. As the ACDP is not represented on the National Council of Province's Ad HocCommittee dealing with this Bill, we thank the Committee for the opportunity to make this written submission and request an opportunity to make an oral submission.

The ACDP recognises the legitimate need for every government to take steps to protect information that is crucial for national security. We also acknowledge that the previous Protection of Information Act, Act 94 of 1982, needed to be repealed. The new legislation needed to strike a delicate balance between freedom of expression, (which includes freedom of the press) and the right to access information held by the state with national security considerations, given the history of our country. It also needed to be narrowly drafted in a manner that considered the important role played in a democracy by the media, and indeed every citizen, in exposing corruption, nepotism and maladministration in society.

Open and transparent government and the free flow of information concerning the affairs of the state is the lifeblood of democracy. That is why the Bill of Rights guarantees to everyone the right of access to "any information that is held by the state", of which NgoboJ said the following in Brummer v Minister of Social Development (2009 (6) CC:

"The importance of this right ...in a country which is founded on values of accountability, responsiveness and openness cannot be gainsaid. To give effect to these founding values, the public must have access to information held by the state."

Etienne Mureinik[1]captured the essence of the Bill of Rights when he described it as a ‘bridge from a culture of authority... to a culture of justification' - what he called ‘a culture in which every exercise of power is expected to be justified.'

The Supreme Court of Appeal (SCA) in the Mail and Guardian case relating to an application for access to a report on Zimbabwe (judgment on 14 December 2010) confirmed that the state must justify secrecy where it seeks to rely on legislation denying access to information on grounds of secrecy. This approach stands in stark contrast to protection of information legislation emanating from the apartheid era, where secrecy was the norm and parliamentary sovereignty trumped constitutional supremacy.

THE NATIONAL ASSEMBLY PROCESS

The ACDP played an important role in the redrafting of the Bill during the National Assembly process, and did the bulk of the drafting of Chapter 7dealing the Classification Review Panel. The idea for such a panel was, however, suggested by members of the African National Congress (ANC).

Further important amendments included significantly narrowing the scope of the application of the Bill to apply to only three security departments (defence, police and intelligence services - with an opt-in clause for other departments "on good cause shown"), narrowing the definition of national security and lifting the thresholds for classification.

Other amendments included removing references to commercial information and the definition of national interest, allowing for fines and removing certain minimum sentences. Importantly, the public interest override contained in the Promotion of Access to Information Act (PAIA) - not to be confused with the public interest defence sought by opposition parties - was inserted with stricter time limits.

Substantial amendments were thus made to the Bill during the lengthy National Assembly process as a result of compelling arguments from civil society (including the Right2Know campaign, opposition parties and the ANC itself, with a redrafted Bill eventually being passed by the National Assembly. Notwithstanding the substantial improvements to the Bill, the ACDP did not vote in favour of the Bill, due mainly to the absence of a public interest defence.

ISSUES TO BE CONSIDERED BY THE NCOP COMMITTEE

The ACDP would like to highlight three issues which, if accepted by this Committee, would substantially improve the Bill. The main outstanding issue relates to the insertion of a public interest defence in section 43. The other two issues relate to the conflict of laws clause as set out in section 1(4) and the classification levels as set out in section 12. We deal with these three issues below.

A PUBLIC INTEREST DEFENCE

The ACDP vigorously argued for the inclusion of a public interest defence to protect journalists and members of the public who disclose classified information in the public interest, such as to expose fraud and corruption. In our view, no compelling argument was presented for not including such a public interest defence.

A public interest defence can be drafted in various ways, ranging from a broad defence, such as is available in our common law as a defence in a civil claim for damages following a defamatory statement, to a very narrow formulation.

At the very least, a narrowly crafted public interest defence similar to the public interest override contained in section 19 of the Bill, taken verbatim from section 46 of PAIA, should have been included. As argued by media lawyer Dario Milo, if documents can be released under PAIA in the public interest despite the threat that the contents pose to national security, "it would be contradictory and unfair in parallel circumstances to criminalise the access, disclosure and continued possession of classified documents that are significant for the public".

The insertion of section 19, similar to the PAIA application for access to a classified document in the public interest, falls far short of such a public interest defence. It is ludicrous to compel a journalist who is leaked classified information which exposes state fraud or corruption, or even an imminent danger to public safety, to first surrender that document to the local police station before applying for declassification or approaching a court of law. The mere delivery of that classified document to the police will no doubt result in a police investigation into that journalist's source. This will result in the "chilling effect" on press freedom in the country, referred to by various commentators on the Bill.

Whilst there is no general common law defence of "public interest" which is available in our law to a person accused of committing a statutory offence, it can be argued that section 29(4) of the Films and Publications Act, Act 65 of 1996 provides a public interest defence. The section provides that the crime of knowingly distributing a publication which advocates hatred based on race etc -and that constitutes incitement to cause harm, does not apply to a publication which "amounts to a bona fide discussion, argument or opinion on a matter of public interest.

Besides publication being allowed in the public interest as a defence in a defamation action, our common-law also recognises that publication in the public interest can also be a defence to an infringement of privacy at common-law, even where , for example, the media obtained such information illegally. In Financial Mail (Pty) Ltd v Sage Holdings (1993(2) SA 451(A), the SCA held as follows:

"It may well be that, if in the case of information obtained by means of an unlawful intrusion the nature of the information were such that there were overriding grounds in favour of the public being informed thereof, the Court would conclude that publication of the information should be permitted, despite its source or the manner in which it was obtained."

Our courts are thus well-versed in applying public interest defences in a range of contexts and would be able to develop similar jurisprudence to address any public interest defence included in the Bill.

It would thus be the court - not the member of public or journalist - which balances the harm caused by the disclosure with the public interest sought to be promoted. Anyone who failed to persuade the court would face the possibility of imprisonment or a fine, depending on the sentence option followed. This would be a very serious deterrent to anyone casually tempted to disclose classified information.

If the Bill is passed in its present form, the following classified information could not legally be possessed or published - the so-called Zuma tapes (regarding problems between the then National Director of Public Prosecutions, state intelligence agencies and the now- defunct Scorpions); the Browse mole report; allegations of nepotism and mismanagement in crime intelligence; project Avani (relating to hoax emails in the National Intelligence Agency); and lastly, crucial information relating to the arms deal.

The Special Investigating Unit last year estimated that the amount of fraud and corruption in the state procurement process was between R25bn and R30bn per year. In view of this widespread fraud and corruption, including in state security organs, it is in our view crucial to insert a public interest defence.

As far as international precedent is concerned, constitutional law expert, Professor Pierre de Vos, has stated there is international precedent for a public interest defence. He pointed to the Council of Europe Convention on Access to Official Documents, the international standards set out by the non-governmental organisation Article 19 and to Canada's Security of Information Act.

The European convention states that access to information contained in an official document may be refused if its disclosure could harm specific security interests, unless there is an overriding public interest in disclosure.

In our view, the omission of a public interest defence renders the Bill open to constitutional challenge. The first journalist or member of the public who is prosecuted for being in possession of or publishing leaked classified information will no doubt succeed in having the relevant clauses creating such offences struck down as being in breach of the constitutional rights of freedom of expression and access to information.

In this regard, the Ontario Superior Court in 2006 struck down similar sections in the Canadian legislation that were used to prosecute a journalist, Juliet O'Neill. It found that these sections "arbitrarily and unfairly and with a blunt club of criminal sanction restrict freedom of expression including freedom of the press," and that Ms O'Neill "was not the focus of the investigation, but instead, an after-the-fact casualty of the resolve of some senior administrators in the RCMP to discover the source of embarrassing leaks."

We would strongly urge the committee to consider inserting a public interest defence in section 43 in the following terms:

"43(2) No person is guilty of an offence of unauthorised disclosure under this Act, provided that:-

(a) The person disclosed the information in good faith; and

(b) The public interest in the disclosure outweighs the public interest in non-disclosure.

(3) When deciding whether or not the public interest in the disclosure outweighs the public interest in non-disclosure, a court may have reference to whether the classified information disclosed concerns, shows or tends to show inter alia one or more of the following -

(a) a substantial contravention of, or failure to comply with, the law;

(b) an imminent and serious public safety, public health or environmental risk;

(c) that an undue advantage is being given to anyone in a competitive bidding process; or

(d) that the public is being significantly misled by an action or statement of a person,

and the public interest in making the disclosure clearly outweighs the reasonably foreseeable harm in not making the disclosure.

(4) No person shall be guilty of the unlawful possession or disclosure of classified information if they have reason to believe that the information has been disclosed under section 44(1)."

Should this Committee not agree to our above recommendation or an alternative public interest defence, we would suggest that the public interest override be strengthened by adding (3)(c) and (d) above in addition to the existing (a) and (b) which is contained in the public interest override.

THE CONFLICT OF LAWS CLAUSE

The ACDP does not agree with the conflict of laws clause as set out in section 1(4). There is already a conflict of laws clause in section 1 (3). In our view it is neither desirable nor necessary to include section 1(4), which essentially trumps the conflict of law provision set out in section 5 of PAIA. PAIA is constitutionally mandated legislation giving content to the constitutional right of access to information. When PAIA was passed, it was inconceivable that any other legislation dealing with access to information would trump its provisions, hence its section 5, which reads;

"This Act applies to the exclusion of any provision of other legislation that-

(a) Prohibits or restricts the disclosure of a record of a public body or a private body; and

(b) is materially inconsistent with an object, or specific provision, of this Act."

The ACDP accordingly recommends the deletion of section 12(4).

THE CLASSIFICATION LEVELS

The ACDP believe that confusion can arise when applying the different criterion for the classification levels set out in section 12. In order for a document to be classified "secret" in terms of section 12(2), the information must be sensitive information, "the disclosure of which is likely or could reasonably be expected to cause serious demonstrable harm to the national security of the Republic."

In order for a document to be classified "top secret' in terms of section 12(3), the information must be sensitive information , "the disclosure of which is likely or could reasonably be expected to demonstrably cause serious or irreparable harm to the national security of the Republic." The word "serious" is used in both tests and will lead to confusion unless the word "or" is replaced with the word "and"in subsection 3. This will result in a higher threshold for the classification of "top secret" documents as opposed to "secret"documents.

CONCLUSION

In conclusion, the ACDP wishes to thank the Chairperson of the NCOP Ad Hoc Committee on the Protection of State Information Bill for the opportunity to make this submission. We trust that our recommendations will be positively considered as we believe that they will improve this Bill and allay the fears expressed about it.

STEVE SWART, ACDP MP

Issued by the ACDP, February 17 2012

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