STATE Security Minister Siyabonga Cwele has finally given an official response to criticism of the Protection of Information Bill. In a briefing to Parliament's ad hoc committee dealing with the bill recently, Cwele said the ministry has adopted the following position:
n Heads of organs of state will retain the power to classify categories of information as it would be unworkable to centralise this power within the Ministry of State Security;
n The current definition of commercial information will be dropped and the bill will be "aligned" to the Promotion of Access to Information Act;
n The overly broad definition of "national interest" will be replaced with a more streamlined concept that includes issues that have an effect on national security;
n Appeals regarding requests for the declassification of information will be considered by the state security minister, who may also appoint an advisory board. They will not be heard by an independent body, as many had proposed;
n A harsher sentence will be introduced for those who improperly classify information but other sentences will not be lessened;
n The provisions regarding the manner in which classified information must be handled by the courts will not be changed;
n No public-interest defence will be introduced because this would completely undermine the purpose of the bill.
Cwele's decision to trim down the overly broad definition of national interest is to be welcomed. But it does not go far enough. It takes a baby step towards constitutionality when what is desperately needed is a quantum leap.
It is disappointing that Cwele has refused to accept the need for a public-interest defence. His response fails to engage critically with the reason a public-interest defence is needed: the exposure of wrongdoing, hypocrisy, mismanagement, criminality and gross negligence.
It is simply not enough for the definition of "national security" or "national interest" to be narrowed. Two examples of abuse by the US government of the power to classify come to mind: the famous Pentagon Papers; and the classified video footage that was leaked on Wikileaks. In both cases the information classified relates to national security, but there is a need for a public-interest override.
The ultimate loser is the public, which will be denied access to important information that ought never to be hidden in a democracy. The fact that the bill makes it an offence to classify information improperly is again no answer to the need for a public-interest defence. And the Promotion of Access to Information Act itself recognises that public interest may override national security: so why not apply this logic to a disclosure based on leaked information?
Cwele paints a picture of irreparable harm if a court ultimately finds that it was not in the public interest for the information to be revealed. But in such circumstances a whistle- blower or editor would rightly face criminal prosecution. Editors and whistle-blowers will have to apply their minds diligently to whether a public-interest justification may reasonably be employed to reveal the information, and if they get it wrong there is a risk of imprisonment. A carefully crafted public- interest defence would hence not open the floodgates to the publication of sensitive information, but would ensure that information that ought to be revealed is not suppressed from public view.
There are two further areas of concern with Cwele's statement that are worth highlighting. First, he has rejected the proposal that an independent oversight mechanism be established to consider appeals regarding requests for declassification of information. Instead, he has suggested such appeals should be directed to the minister. But the creation of an independent oversight body to review decisions concerning classified information would ensure an independent mind is brought to bear on requests for declassification and would create an affordable, quick alternative to court action.
Second , Cwele has insisted the sections of the bill that address the manner in which classified information must be dealt with by the courts are not problematic because the court ultimately retains the discretion to regulate its processes. But this fails to acknowledge that section 46 of the bill actually does the opposite: it fetters the court's discretion by directing that when a court is deciding whether or not to release classified information it must seek submissions from the classifying authority; providing that these submissions "may not be publicly disclosed"; and that any hearing "must be held in camera". And the provision also proceeds from the wrong departure point: while a holding position of secrecy is justifiable until full argument is heard, the party seeking to keep the classified information secret should have to justify why this should be so.
Cwele's response represents a missed opportunity to cure the fundamental deficiencies in the bill. But the ad hoc committee can still do justice to the submissions made and take the quantum leap required to ensure that the bill is constitutional.
- Milo is a partner, and Ampofo-Anti is an associate, at Webber Wentzel attorneys.