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Shopsteward Volume 23 No. 4

COSATU Media Monitor COSATU Media Monitor COSATU Media Monitor

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Policy  |  Submissions

COSATU Submission to the NCOP on the Protection of State Information Bill (POSIB)

29 March 2012

Contents

EXECUTIVE SUMMARY

  1. INTRODUCTION
  2. WHAT INFORMS OUR STANCE

2.1 Substantive Values
2.2 Broad Technical Considerations

  1. COMMENTS ON SPECIFIC PROVISIONS

3.1 Scope and Application of the Bill
3.2 Trumping of PAIA and Other Legislation
3.3 General Principles of State Information
3.4 Valuable Information
3.5 Classification Information
3.6 Abuse of Classification
3.7 On Whistle Blowing
3.8 Hostile Activity Offences and Espionage

  1. PROTECTION OF THE MEDIA
  2. ON THE PUBLIC INTEREST DEFENCE GENERALLY
  3. CONCLUSION

EXECUTIVE SUMMARY

Since its inception the process around the Protection of State Information Bill (POSIB) has been mired in controversy, and has also been subject to considerable misinformation from BOTH proponents and opponents of the Bill. While COSATU agrees that the POSIB is an information security bill and not a media bill, we differ sharply with arguments that casually dismiss the numerous substantive problems with the Bill that we have identified alongside other civil society organisations.

We agree that there is a need to enact security and information legislation. Further we agree that there is a need to replace the current 1982 Protection of Information Act, which is apartheid state security legislation. However, the POSIB needs to undergo substantial revision in order for it to fulfil its purpose appropriately without creating undue consequences.

In particular the values of openness, transparency and accountability must not be undermined. These are given expression in terms of the constitutional rights to freedom of expression and access to information under sections 16 and 32 of the Constitution, which in turn were drawn from articles 6 and 8 of the Freedom Charter.

In summary these are COSATUs views on the Bill:

Scope of the Bill

  • The scope of the Bill is overly wide and creates the potential to establish and entrench a security state. It is not limited to security services and bodies as claimed by various proponents of the current version of this Bill. In terms of section 3(2)(b) of the Bill, it may be extended by Ministerial discretion to ANY organ of state. This includes ALL levels and institutions of government, state-owned enterprises and private entities that have been declared national key points.
  • The Bill unduly encroaches on matters that should not fall under the scope of national security legislation or the Department of State Security. Criminal contraventions of security legislation have considerably more serious connotations than contraventions of other types of legislation. Unless an actual threat to national security (as properly defined) is demonstrated, confidentiality of government information in OTHER sectors should be regulated through sectoral legislation and not through the POSIB.
  • The Bill problematically proposes to regulate valuable information. This in fact has nothing to do with national security but instead relates to information held in public archives, which in future will inappropriately be subject to the authority of state security machinery such as the National Intelligence Agency (NIA).
  • State information may be classified in terms of the POSIB in the event that its disclosure threatens national security. However, national security is problematically defined in the POSIB to include exposure of economic, scientific or technological secrets vital to the Republic as well as responsibilities to any foreign country and international obligations. So for example, should there be publication of the terms of the World Bank loan to Eskom or alternatively the terms of a loan made by South Africa to a foreign country, this would inherently violate diplomatic obligations to a multilateral institution or a foreign country, despite the compelling public interest to make transparent the usage of public resources.

No automatic declassification of pre-1994 state information classified by the apartheid government

  • There is no provision for automatic declassification of information that was classified pre-1994 by the apartheid government. This is despite there being a broader vested public interest to provide closure for those who remain without answers to questions associated with the brutal practices of the apartheid regime. Instead the POSIB through section 55(2) allows for this information to remain classified, with any review and reclassification being subject to the ordinary day-to-day business of the Department and the NIA. Our view is that this information should be distinguished from other classified information and should be automatically declassified.

Trumping of PAIA and other legislation

  • The POSIB states under section 1(4) that its provisions will trump the Promotion of Access to Information Act (PAIA) or any other legislation if it relates to access to classified information. This is despite the fact that PAIA already contains numerous and adequate safeguards that prohibit disclosure. Other legislation that may be affected by this clause under POSIB include:
    1. Section 16 of the Labour Relations Act, which provides representative unions with the right to demand access to information in the course of collective bargaining.

    2. Section 31 of the National Environmental Management Act, which provides detailed protection for access to information and whistleblowers.

    3. Sections 26, 31(3) and 45(5) of the Companies Act provide for the rights of access to information for trade unions and shareholders. Most state-owned enterprises and privately owned national key points are registered as companies under the Companies Act.

On whistle blowing

  • The Bill criminalises unauthorised possession of classified information under sections 15 and 44. Under section 14 any person who aids, induces or counsels another person to commit an offence is also guilty of an offence. This provision does not distinguish wilful criminal intent from the actions of those who are providing support for blowing the whistle on corruption. This would have the effect of criminalising the obligations of trade unions to assist whistle blowers.
  • The POSIB under clause 43 provides ineffectual protection of whistleblowers by stating that it is not an offence to make a disclosure in terms of the Protected Disclosures Act (PDA) and the Companies Act. This ignores the fact that entire categories of whistleblowers are not protected by either of these two Acts. The PDA applies only to employees and the Companies Act would apply to state-owned companies and not government departments.
  • Furthermore if a person obtains, possesses or discloses classified information but is not authorised to do so, section 43 would be of no assistance. This would make lack of authorisation the greater offence even against a serious irregularity that has been exposed by such an unauthorised disclosure.
  • Absolute exclusion of ANY whistle blower protection is imposed in respect of state security matters, which relates to operations of the NIA. There is no justification for this special treatment.

Hostile activity offences and espionage

  • Clauses 36 and 38 respectively prohibit the disclosure of information that would benefit a foreign state or would prejudice the national security. We are unequivocally opposed to the promotion of espionage or similar activities hostile to the state. However, the wording in the Bill is so broad that it would have the effect of imposing criminal responsibility even against individuals who are merely blowing the whistle in the public interest.

  • On the public interest defence
  • COSATU acknowledges that there is a need for an appropriately drafted version of state information security legislation. This would mean, that even after addressing the technical problems noted above, we would have to accept that some restrictions must be placed on access to and disclosure of legitimately classified information. Accordingly there is a need for a safeguard that would act as a counter-balance to legitimate restrictions where the public interest warrants it. On this basis we maintain our support for the introduction of a public interest defence, which we believe should be available for whistle blowers and the media.

1. INTRODUCTION

COSATU appreciates the opportunity to engage with the NCOP hearings on the Protection of the State Information Bill (POSIB). Since its inception the process around the POSIB has been mired in controversy. Unfortunately it has also been subject to considerable misinformation from BOTH proponents and opponents of the Bill. COSATU is in agreement with the ANC and the Ministry for State Security that the POSIB is an information security bill and not a media bill. At the same time, having carefully considered both the original and revised bills, we must differ sharply with arguments that casually dismiss the numerous substantive problems with the Bill that we have identified alongside other civil society organisations.

We see this process as an opportunity to clarify our respective views on how state information would be best appropriately regulated.

Furthermore we reserve our rights to raise additional substantive concerns during the NATIONAL hearings that will be convened by the NCOP at a later stage.

2. WHAT INFORMS OUR STANCE

We want to indicate at the outset that COSATU does not question the need to enact security and information security legislation and that furthermore we agree with the need to replace the current 1982 Protection of Information Act with more appropriate legislation. We have maintained this principled position since the inception of our involvement in the process beginning in June 2010.

2.1 Substantive Values

In broad terms the substantive values and principles upon which our position is based include:

  • The promotion of openness, transparency and accountability within our institutions of governance at all levels.
  • The protection of the complementary objectives of public interest and an appropriately constructed definition of national security.
  • Accessible and affordable institutions and processes that promote public access to and disclosure of information
  • Rational deployment and selection of the appropriate state machinery and institutions involved in achieving the above objectives.

Our support for the above must be viewed against COSATUs background as a revolutionary trade union movement and where it has always located itself even before 1994, as informed along with our allies by our historical values. Here we must pause to note articles 6 and 8 of the Freedom Charter, which respectively state:

The law shall guarantee to all their right to speak, to organise, to meet together, to publish, to preach, to worship and to educate their children,

AND

All the cultural treasures of mankind shall be open to all, by free exchange of books, ideas and contact with other lands.

These provisions laid down the initial foundations for corresponding rights in our Constitution. However, it did so at a time when the majority in our country were denied access to even their most basic rights, and when these could be described as being merely aspirational. Whereas now the Bill of Rights sets out detailed provisions on freedom of expression and access to information and in particular states:

16 (1) Everyone has the right to freedom of expression, which includes-

  1. freedom of the press and other media;
  2. freedom to receive or impart information or ideas

AND

32(1) Everyone has the right of access to-

  1. any information held by the state; and
  2. any information that is held by another person and that is required for the exercise or protection of any rights.

We acknowledge that there are aspects of the Constitution that reflect the inherent problems associated with the negotiated settlement, such as the property clause. However, we are absolutely clear that the rights to freedom of expression and access to information are not part of these and instead reflect a major victory over and departure from our repressive past. These are the core values of the ANC and the democratic movement as a whole. They were not part of the "fatal concessions" as one of the leaders of the ANC, who is also a Deputy Minister of Correctional Services, put it.

2.2 Broad Technical Considerations

In a separate part of this submission we will comment in detail on individual provisions of the Bill. However, it is important at the outset to deal with a number of technical and principled considerations against which the Bill must be tested, and which include the grounds on which we will continue to challenge it being passed in its current form. In particular, we feel the need to draw attention to the concern as to whether the Bill does not inadvertently draw us closer to the threat of entrenching a security state.

i. The scope of the Bill is NOT limited to the security services, as has been claimed publicly on numerous occasions.[1]

  • In terms of clause 3(2)(a) the Bill applies automatically to security services and oversight bodies (namely the Defence Civilian Secretariat and the Police Civilian Secretariat).
  • Under clause 3(2)(b) this may be extended by Ministerial discretion to any organ of state, which includes:

    1. All spheres and levels of government;
    2. State-owned enterprises; and
    3. National key points, which also include privately-owned entities.

  • There is a need to exercise caution as to which state institutions, departments or organs should have at their disposal the powers and functions that should only be legitimately wielded by the security cluster. It is not enough for an organ of state to merely claim that it has security considerations that require it to protect the confidentiality of its records, especially where these may be more appropriately protected through sectoral legislation and the imposition of contractual obligations.

ii. The Bill unduly encroaches on matters that should NOT fall under the scope of security legislation or the Department of State Security:

  • Here it should be noted that contraventions of security legislation have considerably more serious connotations than for a contravention (including a criminal contravention) of another category of legislation.
  • So for example, while we would agree that there must be severe consequences or penalties for a person who violates confidentiality of documents held by the National Health Laboratory Services, it would be irrational and disproportionate to treat this as if there has been a threat to national security.
  • This problem is further illustrated by the 4 December Government Communication and Information Service (GCIS) advertorial, which states that the Bill can be used to protect companies from being highjacked by illegally altering the information at the Company registry. This laudable objective would be inappropriately located under the authority of the Department of State Security when it would be more rationally dealt with by the Department of Trade and Industry (dti).
  • The Bill contains numerous provisions on the protection of valuable information against alteration, destruction or loss [2]. Again this is a laudable objective that must be supported and promoted. However, it is generally accepted on all sides that such information does NOT impact on national security, and is therefore not required to be classified in terms of this Bill. Accordingly it has never been conclusively illustrated why the involvement of the Department of State Security and its Agency is necessary in monitoring and enforcement (see clause 35(a)).
  • Currently national archives are subject to the authority of the Department of Arts and Culture. The National Archives and Records Service of South Africa Act of 1996, currently regulates public records and even stipulates criminal sanctions for the contravention of its provisions. This Act should rather be amended and made more stringent if needed as opposed to incorrectly elevating contraventions to that of a status of a security legislation violation.
  • Whilst we accept the necessity for security legislation, it should only be deployed where it is strictly necessary. Otherwise we run the risk of entrenching a security state that goes against the values that we fought long and hard to establish. In many instances this is not a call to withhold ANY form of legislation or regulation, but rather to differentiate rationally when that regulation should legitimately fall under the Department for State Security.

iii. The handling of state information classified pre-1994 by the apartheid government requires a separate and differentiated process from state information that was classified AFTER this period.

  • Clause 55(2) sets out transitional provisions on the handling of information that has already been classified in terms of the 1982 Protection of Information Act and the Minimum Information Security Standards (MISS) Guidelines that were adopted by Cabinet in 1996. As the Act is still in place this would include state information classified both before AND after 1994.
  • It is a serious concern that more than 17 years into our democracy there remains a substantial body of pre-1994 state documentation dealing with human rights violations that remains classified and unavailable to the general public, despite their potential to provide closure for many of those who remain without answers in relation to questions associated with the brutal practices of the apartheid regime.
  • There is also a broader vested public interest in ensuring full disclosure. Our general stance therefore is that all state information that was classified prior to 1994 should be declassified and made publicly available unless there are clear and compelling reasons in individual cases not to do so.
  • Accordingly any review and determination of information classified pre-1994 should be undertaken through an inclusive process and not by the NIA as is proposed by the Bill. This should not be treated as ordinary day-to-day business of the Department or the NIA.

3. COMMENTS ON SPECIFIC PROVISIONS

3.1 Scope and Application of the Bill

Application to the Security Cluster and Ministerial Discretion to Apply the Bill to Other Organs of State

We have already commented in some detail above on the overly-wide scope of the Bill and the associated potential incursion of state security considerations into the regulation of information held by other organs of state. In our view the scope of the Bill remains excessively wide. This is despite the revised Bill under clause 3(2) reducing the automatic application from all organs of state to only the security services, since the State Security Minister has the discretion to extend this to just about any organ of state merely on good cause shown. It is possible that we may agree that certain additional organs of state should fall under the scope of this Bill. However, that determination should be made through an objective mechanism.

Further, in each instance emphasis should be placed on first relying on specific sectoral legislation unless there is compelling evidence demonstrating the need to apply the Bill. Here it would be relevant to ask the questions as to what justifiable public interest would be served by placing restrictions on the processing of any information; and if it can be justified why should this be implemented through security legislation and not ordinary law. This would necessarily have different practical implications depending on the sector within which an organ of state is located. Moreover, surely genuine threats to national security arising from the compromised control of information do not arise equally from all sections of the public sector. Why then is there a blanket provision to enable the inclusion of all organs of state that would even encompass state-owned entities and national key points?

Further it should be noted that even in relation to the application of the Bill to security cluster we have concerns. Why is it necessary to include the oversight bodies of the Police Civilian Secretariat and Defence Civilian Secretariat within the scope of the Bill?

National Key Points

The scope and reach of the Bill is further amplified by the inclusion of national key points in the definition of an organ of state. Under the 1980 National Key Points Act (which is yet another relic of the apartheid security legislative machinery) this includes even privately-owned entities. It is difficult to obtain a full list or even an indication as to the number of entities that have been declared national key points, as the information is held (or more correctly withheld from public and civil society scrutiny) by the Minister and the state security machinery. What we do know is that it entails such diverse entities as oil refineries and airports.

Longstanding community battles in the South Durban area with the Engen and SAPREF refineries around aging and leaking fuel pipelines illustrate the potential problems. Despite extensive evidence of the risks and impact on community safety and health, these companies managed for years to block exposure of their extensive violations of health and safety regulations. As the refineries and pipelines were designated as national key points, security legislation was used to cast a veil of secrecy over its activities. This is despite the fact that the real threat to public safety was the activities of the companies themselves as opposed to the disclosure of information of their violations. It is worth noting that these violations continued well after the periods during which the Promotion of Access to Information Act (PAIA) and the National Environmental Management Act were enacted, both of which increased rights of access to information.

Our concern here is that the Bill will only increase and entrench existing problems around the abuse of the National Key Points Act. It also provides private entities with certain powers that are comparative to those allocated to the state.

The Definition of National Security

In addition to the potential problems that may creep in during the classification process, is the lack of an appropriately constructed definition of national security under clause 1, which creates the potential to justify the inclusion of a broader range of categories of state information for classification. A key concern is that it includes such problematic criteria as the exposure of economic, scientific or technological secrets vital to the Republic as well as responsibilities to any foreign country and international obligations.

Our concern here would be illustrated by considering the fact that should there be publication of the terms of the World Bank Loan to Eskom or alternatively the terms applicable to a loan made by South Africa to a foreign country (e.g. Swaziland), this would inherently violate South Africas obligations respectively to a multilateral institution or a foreign country. In so doing this would be deemed to have compromised the national security despite the compelling public interest to make transparent the usage of public resources.

Public interest necessarily overlaps with a correctly constructed definition of national security, and in many instances should even override the protections for diplomatic relations or against economic harm especially where it is necessary to expose serious irregularities, corruption, contraventions of the law or threats to public health and safety.

Furthermore there is no need for a reference to exposure of economic, scientific or technological secrets vital to the Republic. There are other criteria in the definition such as the protection of the Republic from hostile acts of foreign intervention, sabotage, or serious violence directed at overthrowing the constitutional order that would render relevant threats within the purview of the Bill. For example, should the Government commission research to develop anti-missile technology, this would immediately fall under the scope of the various other criteria of the definition of national security relevant to the defence of the country. Furthermore in most instances sectoral legislation and contractual obligations would provide additional restrictions against disclosure of information that would compromise the countrys national security, as properly defined.

3.2 Trumping of PAIA and Other Legislation

Clause 1(4) provides the following:

In respect of classified information and despite section 5 of the Promotion of Access to Information Act, this Act prevails if there is a conflict between a provision of this Act and provision of another Act of Parliament that regulates access to classified information. (Emphasis added)

The reference above to section 5 relates to PAIAs trumping clause that subordinates any other legislation that would prohibit or restrict the disclosure of information in a manner that contradicts the objects of PAIA. What the POSIB does here is intentionally trump PAIAs own trumping clause, which was intended to have the broadest application. In addition PAIA contains numerous safeguards that prohibit disclosure or allow the discretion not to disclose records. This includes variously the protection of police dockets in bail proceedings, and records relevant to the defence, security and economic interests in the Republic. Cabinet processes are also explicitly excluded from the scope of PAIA. This is an acknowledgment within PAIA of the need to balance the protection of secrets and confidentiality in certain instances against the compelling objective to promote transparency and openness. Accordingly we cannot see the justification for the inclusion in the POSIB of such a provision, which seeks to usurp a key piece of legislation that sought to effect a break away from the secrecy of the apartheid government.

It is important to note that the Bill also usurps other pieces of legislation in so far as access to classified information is concerned. In addition to Promotion of Access to Information Act (PAIA), there are other pieces of legislation that enforce rights of access to information. From our cursory review these include (but are not necessarily limited to):


  • Section 16 of the Labour Relations Act of 1995 (LRA), which provides representative unions with the right to demand access to information in the course of collective bargaining. Trade unions often use various categories of information to aid the process of collective bargaining. In the course of inspecting and reviewing employer records irregularities may be identified. In practice employers are reluctant to disclose information and attempt to use all forms of legal obstacles to evade compliance. Should relevant information be classified in accordance with this Bill, this would greatly inhibit the application of this right under the LRA.
  • Section 31 of the National Environmental Management Act of 1998 (NEMA), contains detailed provisions on access to information and protection of whistleblowers. The discussion above in relation to the national key points illustrates the necessity for ensuring that NEMA is enforced in the public interest.
  • Sections 26, 31(3) and 45(5) of the Companies Act of 2008, provide variously for the rights of access to information for trade unions and shareholders. It should be noted that most state-owned enterprises and privately owned national key points are registered as companies through the Companies Act. Should relevant information be classified under the POSIB it could unduly hinder the application of relevant sections of the Companies Act.

3.3 General Principles of State Information

Clause 6 of the Bill identifies various principles that should apply to the regulation of state information. Most of these principles are progressive and should be supported since they reflect appropriate values such the promotion of free flow of information. Our primary criticism would be that these principles are aspirational and in certain parts are contradicted by the main sections of the Bill.

Notwithstanding this, we are of the view that sub clause 6(j) would require some redrafting. It is pasted below

in balancing the legitimate interests referred to in paragraphs (a)(i) the relevant Minister, a relevant official or a court must have due regard to the security of the Republic, in that the national security of the Republic may not be compromised. (Emphasis added)

The above provision suggests that national security usurps all other objectives and would remove the discretion to balance those against that of national security. In certain instances it may be necessary to subordinate national security and allow disclosure in the public interest.

3.4 Valuable Information

Clauses 8 and 9 of the Bill provide respectively for the process of identifying valuable information and the obligation to handle it with due care. Here, as opposed to those provisions in the Bill on classified information, the emphasis is on setting minimum standards for the preservation, retention and protection of valuable information and NOT on prohibiting its disclosure. As a general principle we are supportive of the strengthening of relevant standards, which we believe are necessary. However, we contest that this is something that should be regulated and enforced through structures of the Department for State Security and the NIA. Those found to be in contravention of the provisions of this Bill, would essentially be in violation of state security legislation. The connotation that this raises is excessive irrespective of whether the resulting sanction is severe or not.

There is also lack of clarity regarding overlaps and inconsistencies with the National Archives and Records Service of South Africa Act of 1996. For example, clause 46 of the POSIB states that any person found guilty of unlawfully and intentionally destroying or removing valuable information would be guilty of an offence and liable to a fine or imprisonment for a maximum period of three years. In contrast section 16 of the National Archives and Records Service of South Africa Act of 1996 stipulates a maximum period of two years for a similar offence.

3.5 Classification Information

Degrees of Harm

Under clause 12 of the Bill, relevant information held by an organ of state or national key point may be classified as either confidential, secret or top secret depending on whether its disclosure is likely or could reasonably be expected to cause harm, serious harm or serious or irreparable harm to national security. These reflect the stringency level of the classification, which in turn determines the extent of the restrictions and applicable criminal penalties.

We are of the view that there is significant room for subjectivity in the interpretation of the level of harm in each case, which is not adequately restricted by the requirement that the harm in each case must be demonstrable. Accordingly there is a need for a proper definition of harm to counter the possibility for subjectivity influencing the classification process.

Authority to Classify

Subclasses 13(6) (9) deal with the authority of any members of the Security Services listed under chapter 11 of the Constitution [3] to classify information. Therefore, unlike with other organs of state, the power to classify is not limited to only the head of the organ of state or a senior staff member to whom that power has been delegated in writing. Although the Security Services member or official must submit the classified information to the head for confirmation, there are NO timeframes imposed against either submission or confirmation. Furthermore information so classified would remain classified (indefinitely) until it has been decided otherwise by the head of the organ of state.

These provisions create ample opportunity for abuse of classification and requires significant redrafting. There is no justification for special treatment of security services.

3.6 Abuse of Classification

Clauses 14(2) and 47 sets out the following provisions to address potential abuse of the power to classify:

14(2) (a) Secrecy is justifiable only when necessary to protect national security;

(b) Classification of state information may not under any circumstances be used to -

  1. conceal an unlawful act or omission, incompetence, inefficiency or administrative error;
  2. restrict access to state information in order to limit scrutiny and thereby avoid criticism;
  3. prevent embarrassment to a person, organisation, or organ of state or agency;
  4. unlawfully restrain or lessen competition; or
  5. prevent, delay or obstruct the release of state information that does not require protection under this Act;

Improper Classification

47. (1) Any person who intentionally classifies state information as-

  1. top secret;
  2. secret; or
  3. confidential,

in order to achieve any purpose ulterior to this Act, including the classification of state information in order to-

  1. conceal breaches of the law;
  2. promote or further an unlawful act, inefficiency, or administrative error;
  3. prevent embarrassment to a person, organisation or agency; or
  4. give undue advantage to anyone within a competitive bidding process.

(2) (a) In the event of subsection (1)(a) is guilty of an offence and liable on conviction to imprisonment for a period not exceeding 15 years;

(b) in the event of subsection (1)(b) is guilty of an offence and liable on conviction to imprisonment for a period not exceeding 10 years; or

(c) in the event of subsection (1)(c) is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding five years.

These are the provisions that are commonly quoted as being a catchall for the prevention of abuse of the power to classify. We support their inclusion especially since they constitute a significant improvement from the original Bill. However, we are of the view this would not adequately address the problem.

Firstly the words be used to or in order to suggests that the motivation for the classification was to hide an irregularity and that that specific information may not otherwise have been classified. Whereas the possibility exists that while specific information may have been properly classified, such a classification inadvertently creates the opportunity for abuse. This is despite that not being the intention behind the classification.

To illustrate by way of example, we must accept that Cabinet documentation should ordinarily be classified and its classification should therefore be not an indicator of irregularity. However, in the case of the arms deal scandal various Cabinet documents were implicated. This does not mean that as a consequence that either all Cabinet documents or those specifically implicated would be automatically declassified. Neither would it be possible to impose a penalty listed under clause 47 for the act of imposing the classification. In other words you would have to establish a link between an improper motive/intention and the decision to classify in order for any penalties to be imposed under clause 47.

Secondly, it would be very difficult practically to prove an irregular intention especially since much of the documentation that would reveal relevant evidence would be classified. Tendering such evidence must mean that an individual who makes such a charge must get past the hurdle of proving requisite authorization to possess that information.

As stated above we do support the provisions under clauses 14(2) and 47. However, noting the loopholes pointed out above allowing for the abuse of classification, irrespective of whether such a classification was legitimately applied, we do not believe that these will ensure that there are adequate disincentives. We are of the view that their efficacy would likely be enhanced by providing for an adequate public interest defence against penalties for unauthorised possession, disclosure and publication.

3.7 On Whistle Blowing

The Bill criminalises possession of classified information by an unauthorised person under clauses 15 and 44. Then in terms of clause 14 it also states that any person who conspires with .aids, abets, induces or counsels another person to commit an offence is guilty of an offence.

Quite problematically this section makes no distinction between wilful criminal intent where someone aids and abets a crime on the one hand, and those on the other who may be providing necessary support for blowing the whistle on corruption. This would have the consequence of criminalising the obligations that trade union officials and advice offices have to assist whistle blowers with advice or even blow the whistle on their behalf where a person wishes to remain anonymous. With the increasing risks associated with blowing the whistle, this support may be the only way to incentivise the exposure of corruption or other irregular activities.

We disagree with the arguments that section 43 of the Bill has the effect of aligning it with whistle blower protections under the Protected Disclosures Act (PDA) and Companies Act. Section 43 provides:

Disclosure of classified information

43. Any person who unlawfully and intentionally discloses classified information in contravention of this Act is guilty of an offence and liable to a fine or imprisonment for a period not exceeding five years, except where such disclosure is-

(a) protected under the Protected Disclosures Act, 2000 ( Act No. 26 of 2000) or section 159 of the Companies Act, 2008 ( Act No. 71 of 2008); or

(b) authorised by any other law.

To the contrary our assessment is that this affords little meaningful protection from the dampening effect that the Bill will have on encouraging the exposure of corruption for the following reasons:

  1. Currently the PDA provides protection to employees only and therefore excludes other individuals such as independent contractors and suppliers or recipients of services. It is precisely because of this that COSATU has argued that this Act should be amended to ensure that the protection be broadened to other types of whistle blowers. Although the Companies Act does provide for a larger number of different types of whistle blowers than the PDA, this would apply only to state-owned companies and not government departments. This means that entire categories of whistle blowers remain without protection from either of these two Acts, and therefore would be unable to employ the defence under clause 43(a).
  2. Furthermore, neither of these Acts deals with information that has been classified and is therefore unable to render protection for a disclosure if the access and possession of the information was not authorised in the first place. Criminal penalties would be applicable regardless of the seriousness of the irregularity that is exposed by an unauthorised disclosure. The reality is that often whistle blowers are driven to illegally obtain information only because it would expose an irregularity or corruption despite that person ordinarily not displaying similar criminal tendencies.

A common problem faced by trade unions and advice offices relates to whistle blowers sending information on irregularities anonymously to their offices. In such cases these organisations would have no authority to possess the classified information. This poses the serious dilemma whether in order to avoid prosecution in accordance with security legislation an organisation may be forced to ignore even grand scale corruption or irregularities.

  1. The Bill allows for the absolute exclusion of any whistle blower protection for the disclosure of information classified as a state security matter by intelligence and security agencies under clause 49. This is illustrated by the fact that a disclosure of ordinary classified information in violation of clause 43 carries a maximum penalty of five years imprisonment. Whereas under clause 49 the penalty for disclosure varies between 10 and 15 years.

As a general principle, we would agree that it would be necessary to protect information relating to the operations of intelligence and security agencies. However, with ample local and global evidence illustrating that the inherently secretive nature of this work creates significant opportunities to engage in irregularities, we must strongly oppose any absolute bar on whistle blower protection in relation to ANY category of state information.

  1. Furthermore ordinarily a worker claiming protection of the PDA would do so within the context of the labour courts (or another labour dispute resolution mechanism) and would be challenging an unfair dismissal or disciplinary action. This would be a civil law matter. Within that context a dismissal would be deemed to be automatically unfair and the employer would bear the onus to prove that it was in fact fair. However, the effect of clause 43 would require a worker to prove that his/her disclosure was protected in a criminal court. This would effectively reverse the burden of proof from the state to the accused (worker), which undermines the presumption of innocence. This raises constitutional concerns, which we believe would be successfully challenged in court.

3.8 Hostile Activity Offences and Espionage

Clauses 36 and 38 respectively deal with espionage and hostile activity offences. While we are unequivocally opposed to the protection or promotion of acts of espionage or similar activities that are hostile to the state, we are concerned that relevant provisions in the Bill are capable of such broad interpretation that it would have the effect of imposing criminal responsibility against individuals who disclose information in the public interest and for which ordinarily crimes of such a nature should not be applicable.

For example, section 36(1)(a) states that it would be an offence to make available state information classified top secret that would directly or indirectly benefit a foreign state. This could include situations where an individual blows the whistle or publishes in the media information that exposes irregularities but which also could be to the benefit of a foreign state, irrespective of whether or not the latter consequence was in fact the intention. The emphasis on espionage should be on those who seek to communicate with a foreign state in order to reveal classified information.

Similarly section 38(1(a) states that it is an offence to make available top secret information that would prejudice national security, which we believe could easily be used to constrain legitimate whistle blowing.

We are not opposed to properly constructed provisions that enable the prosecution of those engaged in espionage or hostile activity offences. However, significant redrafting is required to ensure that it distinguishes these offenders from legitimate whistle blowers.

4. PROTECTION OF THE MEDIA

COSATU remains critical of the chronic problems of bias, lack of balanced reporting and diversity in the mainstream commercial media. We have bemoaned the concentration of ownership of the media in our country, which means there are inadequate levels of diversity and plurality that is so essential to media freedom. However, in our view in the absence of other viable alternatives it remains one of the broadest forms of disseminating and implementing rights of access to information for the masses. In our view public awareness is integral to holding state institutions accountable and acts as a check against irregularities.

Furthermore state censorship and the potential persecution of journalists and media would only exacerbate the problems of inaccuracy and bias. In our view it is necessary to facilitate and enhance reporting and investigative journalism in the public interest.

However, as the Bill places extensive restrictions on access, possession and disclosure of classified information it would necessarily severely curtail this objective.

5. ON THE PUBLIC INTEREST DEFENCE GENERALLY

There remain substantial technical amendments that must be undertaken in order to achieve an acceptable product. We have always been clear that we accept the need for an appropriate version of state security legislation. This necessarily means accepting that some restrictions would be placed on the processing of classified information. However, in addition to effecting the necessary technical amendments, there is a need for a safeguard that would act as a counter-balance to legitimate restrictions where the public interest warrants this. On this basis we maintain our support for the introduction of a public interest defence, which would be available especially for whistle blowers and the media.

We do not believe that there would be much scope for abuse since the defence would not be available should a person not be able to demonstrate that there was valid public interest to protect or promote. In fact failure to prove a valid public interest defence would invariable result in the imposition of a criminal sanction.

6. CONCLUSION

COSATU has engaged extensively in the processes leading to the enactment of PAIA; the Protected Disclosures Act (PDA), and even in relation to the Constitution of our country. We have also consistently maintained pressure on the need to step up the fight against escalating corruption in both the public and private sectors. In respect of this process our engagements have always been informed by our historical values that founded not only the federation but the democratic movement as a whole.

The Bill in its current form would make serious inroads into the upholding of the values of openness, transparency and accountability. Worryingly, whether inadvertently or intentionally, it proposes to do this by entrenching authority through a security state. The revised Bill represents a significant improvement over the original version, and yet retains fundamental problems. We believe that there is still space to address this through an inclusive process and accordingly commit to engaging with the relevant processes to ensure that the final product is one that is acceptable to all.

Footnotes

1. See for example the GCIS advertorial: Information Bill: Government Explains the Protection of State Information Bill, 4 December 2011.

2. The classification of information has the consequence of restricting and prohibiting access to possession and disclosure of such information. Whereas the same consequences are not applied for categorising information as valuable as the emphasis is rather on its preservation and protection.

3. This includes members of the SANDF, SAPS, State Security and Intelligence Services as well as the Police Civilian and Defence Civilian Secretariats.

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