The Democratic Alliance (DA) has been arguing, since the first sitting of the first ad hoc committee on the Protection of Information Bill in 2008, that a classification law cannot apply to all organs of state. It is a vindication of our position (and also of the Parliamentary legislative process, during which we keep talking until we hear each other, and do the best for our country), that the application clause of the Bill will now be narrowed to the Security and Intelligence departments, as we suggested.
Our proposal that other government departments, instead of automatically being allowed to classify information, be allowed to apply for the right to classify, has been accepted. In this, we have listened to the ANC’s arguments and those of the Minister of State Security, who argued that there are classes of information outside of the Security Department which require classification, and cited Science and Technology secrets as one such class of information. Our series of parliamentary questions to government departments revealed that the Department of Science and Technology does indeed engage in copious classification. It goes without saying, however, that any unjustifiable classification in a Department such as Science and Technology, or any other, should not be permitted, and to this end the classification criteria, definition of national security and appeal mechanism remain crucial.
Various civil society initiatives have independently supported us on this particular issue. IDASA undertook a count of the organs of state covered under section 239 of the Constitution (which the State Law Advisor protested would be like counting the grains of sand on a beach), and found 1 001 organs, ranging from the Johannesburg Zoo to the Natal Sharks Board. Advocate Nichola de Havilland of the Centre for Constitutional Rights wrote an authoritative opinion on the unconstitutionality of the broad scope of application, which goes against the requirements for openness that permeate our Constitution, encouraging a culture of opacity and its corollary, the abuse of classification powers.
It is important to note that, although we have now won the battle for narrowing the scope of application, and even though the classification criteria and thresholds have been accepted almost word for word, the definition of national security, which forms the basis for all classification, has yet to be resolved. The Intelligence Services, more than any other organ of state, must not be allowed to classify information safely beyond scrutiny. Rev. Frank Chikane, the former Presidential Director-General, once said that a corrupt intelligence service would present the greatest threat of all to national security, and we will do well to heed his words.
For this reason, it is important that there should be an independent appeal person or body to rule on refusals for access to classified information. We have suggested the judge designated in terms of the Regulation of Interception of Communications Act (RICA), who determines the interception of communications and is versed in security matters. The ANC proposed today any retired judge, who would be equally acceptable.
In the case of security, our Constitution explicitly integrates international law, including the International Convention on Civil and Political Rights, which in Article 19 states that only national security (and public order and morals) may, and only when necessary, limit the right to receive information and the right to free speech.