Last year, while the Protection of State Information Bill was stuck in the quagmire of the National Assembly's ad-hoc committee then processing it, Inkatha Freedom Party MP Mario Oriani-Ambrosini remarked that a group of lawyers around a table would have found solutions in no time at all. By then MPs had fought for months over the simplest of changes, buffeted between party bosses, the state security ministry and the demands of civil society.
Oriani-Ambrosini, a member of the committee and a lawyer by profession, was well placed to comment. After a major "public interest defence" concession by the ANC last week fell well short not so much for lack of intent as for bad drafting, the IFP MP's solution seemed appropriate. But that would not be democracy. And whereas democracy is messy – very messy, in this case – it is the same democracy that has already resulted in the Bill being substantially amended for the better. Had it not been for public and interest group pressure over the course of two years, the deeply flawed – and, by the way, human rights lawyer-drafted – original version of the Bill would have been law by now.
So, now that democracy has been identified both for its imperfection as a drafting tool and as being our best hope after all, let us examine some of the main snags our public representatives have yet to remedy.
Public interest defence
ANC MPs on the National Council of Provinces committee now processing the Bill finally dropped their bombshell concession late last week: the inclusion of an exemption akin to the "public interest defence" that civil society and the media have demanded since 2010. It was done without fanfare or acknowledgement of the scale of the about-face after the party and the state security ministry had kicked against it so uncompromisingly for so long. The exemption states that one cannot be penalised for disclosing a classified record if disclosure reveals criminal activity, or if the record was criminally misclassified.
But there are significant hitches:
The three offences for which the harshest penalties have been reserved are “espionage”, “receiving state information unlawfully” (for the purpose of espionage) and “hostile activity” (similar to espionage, but the beneficiary is a hostile group rather than another state).
The courts of the world – east, south, west and banana – are littered with examples of journalists and activists prosecuted as "spies" for lack of any other legislative means to harass persons who bring uncomfortable facts to light. Although this is unlikely to happen in present-day South Africa, good law needs to guard against abuse and this is where the clauses dealing with these three offences fall down. After the problem was pointed out to MPs in the National Assembly committee last year, they hurriedly inserted the word "intentionally" into each offence, making it a crime to "intentionally communicate … state information classified top secret which the person knows … would directly or indirectly benefit a foreign state".
But it went into the wrong place. A journalist who "intentionally" publishes a classified record to expose corruption but that he or she has to admit would, collaterally, also give indirect benefit to a foreign state would, according to the current wording, be guilty of espionage. The solution is simple. See how the following, with the intent only slightly redeployed, fixes the problem: it is an offence to "communicate state information classified top secret with the intention directly or indirectly to benefit a foreign state". Again, at a policy level there should be no bar to accepting the change. It is simply a matter of getting the drafting right.
The Bill suffers another dozen or so defects that, if fixed, would turn it into one of the better examples of its genre internationally. A few examples:
The Bill remains deeply flawed. But for the first time there is light at the end of the tunnel. On a policy level the once yawning gap between the ruling party and civil society is all but bridged. Now comes the hard part: to turn a messy democratic success into good law.
Stefaans Brümmer has been involved in the campaign against the Protection of State Information Bill both as managing partner of the M&G Centre for Investigative Journalism and a member of the Right2Know campaign.
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The M&G Centre for Investigative Journalism (amaBhungane) produced this story. All views are ours. See www.amabhungane.co.za for our stories, activities and funding sources.
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