By Nomfundo Manyathi

The National Council of Provinces (NCOP) held public hearings on the Protection of State Information Bill (B6 of 2010) (the Bill) from the end of January to the beginning of March this year. The aim of the hearings was for parliament to introduce the Bill to the public and for the public to be given the opportunity to comment and make recommendations on ways to improve the Bill, if necessary.

The Bill has been criticised for a number of reasons, including a lack of a public interest indemnity clause, concerns about the Bill’s potential to enable the cover up of corruption and other wrongdoing by those in power and the harshness of the sanctions provided for in the Bill.

De Rebus attended one of the 21 nationwide hearings that took place in Mamelodi in Pretoria. Member of the NCOP Ad Hoc Committee on Protection of State Information Bill, Sam Mazosiwe, introduced the Bill to the attendees, who were mostly members of the local community.

Mr Mazosiwe said that the Bill provided for the classification and declassification of state information, the methods to classify information, as well as classification levels.

He added that the Bill would create a legislative framework for the state to respond to espionage, theft, terrorism and associated hostile activities and would ensure the protection of personal information, such as that contained in identity books, passports and birth certificates, so that nobody would be able to gain access to this information and use it for ulterior motives.

Mr Mazosiwe used whistle-blowing website WikiLeaks as an example of why the Bill was necessary, saying that it had ‘destroyed’ the United States of America. He said that it was wrong to publish state information, especially if it was done knowing that the information was secret. He added that sensitive information about South Africa had been published on the website and that this was one of the reasons why the Bill was needed – to curb people selling information to other countries for the purposes of personal gain.

He said that the police and the state would do most of the classifying, adding that no information would be classified in order to hide corruption. He emphasised that anyone found to be doing this would be ‘severely punished’.

Mr Mazosiwe said that the Bill would create a ‘much needed balance’ between the freedom to publish ‘everything and anything’ and the need to protect certain information, and that the Bill would help safeguard the state and the people of South Africa.

The public revealed mixed emotions when it was time to hear their views. Some said that the Bill was long overdue and asked if there was a way to fast track the process, while others were against the Bill becoming law in its current form.

Yusuf Abramjee, chairperson of the National Press Club (NPC), which represents over 400 members of the media and students, was the first to make comments on the Bill. He said that the legislation would not only affect the media, as was the perception, but that it would have ‘major and serious’ consequences for society.

‘Every government needs secrets, but the proposed clauses that clearly infringe on the constitutional rights of ordinary citizens and those of the media have serious implications for all of us. Our Constitution guarantees freedom of expression, which includes freedom of speech and freedom of the media, as well as the right of access to information, but there are some clauses in the Bill which are in clear conflict with the Constitution,’ said Mr Abramjee.

He added that the NPC could not ‘sit back and allow unconstitutional laws to be passed’.

Mr Abramjee said that a democratic country like South Africa could not have censorship in any form and that public interest must be considered. ‘Whistle-blowers are going to be scared to lift the lid on corruption, fearing long jail terms,’ he said.

Solly Msimanga from opposition party the Democratic Alliance said that the Bill undermined the public and that people had died in order for citizens to know what government was doing.

Mr Msimanga said that a government department could easily use the Bill to cover up fraud. ‘We will not know if government is misusing its budget when the Bill comes into law, as communication will be less. Draconian rules that were there before will be brought back by the Bill. We do not even know who will classify the information and how,’ he said. He added that he understood that there was a need to protect government but that it must be done properly.

Some of the residents of Mamelodi said that the Bill was unconstitutional and was poorly drafted as it was too general and gave police officers too much power. They called for the Bill to be reviewed.

Others felt that neither the NCOP nor the media were providing sufficient information or publicity about the Bill and said that extensive information on the draft legislation was needed in order for the public to better understand it. While others understood what the Bill stated, as well as the reasons for introducing it, they asked government to first address service delivery issues before focusing on the Bill.

After hearing all the comments, Mr Mazosiwe said that the submissions had been recorded and would be considered. The public hearings were to be followed by parliamentary public hearings from 27 to 30 March. The committee was then to deliberate on the outcome of the hearings before submitting a final report on the Bill to the NCOP.

Nomfundo Manyathi, nomfundo@derebus.org.za

This article was first published in De Rebus in 2012 (April) DR 11.