Profession raises its voice against State Information Bill

April 1st, 2012

By Barbara Whittle

Attorneys throughout the country recently made their voices heard at public hearings on the Protection of State Information Bill (B6 of 2010). The hearings were held by the National Council of Provinces (NCOP) at various venues around the country in anticipation of the NCOP Ad Hoc Committee on Protection of State Information Bill deliberations. The Law Society of South Africa (LSSA) made formal written submissions on 17 February 2012 to the ad hoc committee, stressing that, as it stood, with the absence of the principle of what is deemed to be in the public interest, the Bill would not pass constitutional muster.

The LSSA suggested that the Bill be amended to –

  • include both a public interest and a public domain defence;
  • limit the application of the Bill unequivocally to intelligence matters only;
  • reduce the maximum sentences; and
  • eliminate all minimum sentences.

The LSSA pointed out a number of key issues that needed to be clarified in the debate around the Bill, including which draft Bill was considered and passed as the ‘final version’ in the National Assembly on 22 November 2011, as well as whether parliament had grasped the implications and significance of chapter 10 dealing with implementation and monitoring of the Act.

The Act, if assented to by the President in its current form, would centralise control of its implementation in the hands of the Minister responsible for intelligence services. While the classification of information is delegated to the heads of organs of state, defined to include municipal managers, chief executive officers of public bodies and owners of national key points, final declassification of information requires consultation with the ‘Agency’ under s 16(5). This, according to the LSSA, means that functionaries would be in complete control of the core features of the Act, not parliament. The LSSA stressed that the Bill should be strictly and clearly limited to intelligence matters only and should leave access to information for the rest of the administration under the auspices of the Promotion of Access to Information Act 2 of 2000 (PAIA) and the Protected Disclosures Act 26 of 2000.

The LSSA warned that broad definitions and an unfettered concentration of power within organs of state strengthened the presumption of secrecy over one of openness and accountability. In addition, the Bill would have the effect of eroding and severely curtailing the right to freedom of expression, a right emphatically recognised by the courts as being central to democracy.

In addition, the LSSA pointed out that the complex route the Bill provided for to gain access to classified information and the attendant costs and delays involved would impinge on access to justice. It also raised serious concern about the harshness of the penalties aimed at the unlawful possession of classified information.

Compiled by Barbara Whittle, communication manager, Law Society of South Africa,

This article was first published in De Rebus in 2012 (April) DR 16.