Lawmakers will have a final try on Tuesday at resolving a row over the lack of a defence for journalists and whistleblowers in the draft Protection of Information Bill, which is threatening to trigger a court challenge.
Cecil Burgess, the chairman of the ad hoc committee drafting the bill, agreed on Friday to have the issue debated again after opposition MPs said it was crucial to find a way out of the impasse on a public interest defence.
“It is the most important outstanding issue and we need to find agreement on the circumstances under which classified information can be disclosed,” said David Maynier, of the Democratic Alliance.
African Christian Democratic Party MP Steve Swart said: “The opposition is ad idem (agreed) on this issue. There must be a public interest defence.”
For the past year, the ANC has refused to countenance a provision that could keep media and whistleblowers who revealed classified information out of prison, if a court found they acted in the public interest.
Ruling party MP Vytjie Mentor said last week that consenting to such a clause would mean “writing loopholes into the law”.
Time is running out to settle the issue because the deadline for completing the bill has been brought forward.
Burgess confirmed this week that the ANC wants to finalise the drafting process by next Friday, and put the bill to the vote in the National Assembly before September 15.
Legal experts are divided over whether the absence of a public interest defence would render the bill unconstitutional. It prescribes maximum prison sentences of 20 years for revealing state secrets.
ANC ally, the Congress of SA Trade Unions (Cosatu) is expected to confront the party if it fails to provide express protection for workers who reveal information to lift the lid on corruption.
“It remains our view that whistleblowers must be protected. A public interest defence would certainly help,” Cosatu spokesman Patrick Craven said on Friday.
Craven said Cosatu feared classification could be used to cover up corruption. Instead of the corrupt party going to jail, the law could instead be used to punish the person who made documents revealing the wrongdoing public.
“The principle is absolutely clear. This law must not be used to send to prison people who uncover corruption.”
The bill criminalises classification to cover up maladministration and corruption, or to spare a public entity embarrassment, but Craven said such abuse of secrecy would never come to light unless somebody had the courage to expose it.
“The problem has always been how does anybody know this is done unless somebody makes the information public?”
Asked if Cosatu planned to press the ANC on the issue, Craven said: “That is certainly our plan.”
In late May, Cosatu threatened to launch a Constitutional Court challenge to the bill, unless major amendments were made.
Civil rights groups have credited the union federation’s intervention with significant subsequent concessions by the ANC.
In recent days, the party agreed to restrict the power to classify information to the intelligence and security services, and to narrow down the definition of national security in the bill.
Opposition parties and civil society organisations have welcomed the move and said it reduces the risk of over-classification and creating a culture of state secrecy.
Constitutional law expert Pierre de Vos said the narrower definition and application would help bring the legislation in line with the Constitution, but that a provision to protect whistleblowers could also prove crucial in this regard.
On Friday, another sticking point was ironed out when the ANC agreed to rewrite clauses on how courts handle applications to have information declassified, to bring them in line with the open justice principle.
This came after senior parliamentary law adviser Ntuthezelo Vanara said lawmakers had overstepped the boundaries of separation of powers by prescribing that the contested information must be kept secret by the courts pending the hearing, and that cases must be heard in camera by three judges.
“The problem is that we are not leaving it to the discretion of the court,” he said.
This section was then redrafted to read that when an application is filed, court officials must protect the information from disclosure or publication, until the court has decided whether the file should remain closed, pending the hearing.
Said the ANC’s Luwellyn Landers: “We agree that it is the courts that decide, but we cannot have a registrar or, heaven forbid a clerk of the court, simply handing out the information.” –