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Cecil Burgess, the Chairman of the Ad Hoc Committee on the Protection of
State Information [the so-called Secrecy Bill], has called IFP MP and
freedom advocate Dr MGR Oriani-Ambrosini "uncivilized". Perhaps
Oriani-Ambrosini made his point too effectively, but nonetheless his is a
point of vital importance to our democracy.

Oriani-Ambrosini requested the opportunity for a short presentation on the
importance of inserting in the Bill a clause which prevents the prosecution
of people who acquire or divulge a piece of information which was previously
secret but is now in the public domain. Oriani-Ambrosini has often stated
that one cannot put the genie back into the bottle once it is out: a secret
can only be regarded as such until its first disclosure and not thereafter.

Oriani-Ambrosini requested his colleagues to take note of what he said, as
he had no PowerPoint presentation. He started with the obvious: he who reads
a secret piece of information in a newspaper cannot be charged with the
illegitimate possession of such secret information even if he knew it to be
secret. Yet at what point does that exception begin?

Oriani-Ambrosini proceeded to use his parliamentary privilege to submit to
the Ad Hoc Committee a piece of secret information which he acquired when
reading top-secret Cabinet minutes within his scope of work as a Cabinet
Advisor.

He said that in 2003 the then Minister of Home Affairs Prince Buthelezi was
requested by Cabinet not to distribute and possibly to destroy the majority
report of the van Zyl Slabbert Commission tasked with drafting a new
electoral law. The Commission was split between a majority of academics and
a minority of bureaucrats and politicians. The majority report criticized
the electoral law because it provides insufficient accountability of
politicians, and proposed a new Bill in its place. Oriani-Ambrosini revealed
that Prince Buthelezi did not abide by Cabinet's instructions to destroy the
majority report, possibly on account of a misunderstanding, and instead gave
to it universities for safe keeping, and that Cabinet criticized him heavily
at its next meeting.

As Oriani-Ambrosini completed his revelation, a great furore erupted in the
Committee, and when it subsided Oriani-Ambrosini continued with his
presentation. He indicated that while his disclosure of secret information
was privileged because it was in the public interest and part of the
constitutional immunity MPs have in respect of anything submitted to
parliamentary committees, other MPs and everyone else in the room did not
have such benefit. All those who, abiding by Oriani-Ambrosini's request,
made notes of what Oriani-Ambrosini said were, at that point, in possession
of secret information which they knew to be such. Therefore, they could be
punished by up to 15 years imprisonment had the Bill been passed in its
present form, as the bill punishes the mere possession of secret information
knowing it to be such.

Oriani-Ambrosini proceeded to say that the journalist in the room could also
face additional imprisonment of up to 20 years when they discussed what
happened in that Committee with their editors and colleagues before deciding
to publish it in the newspapers. Similarly, MPs presenting in their caucuses
what happened in the Committee would also be liable to imprisonment for up
to 20 years, while their caucus colleagues who listen to them would be
liable to imprisonment for 15 years.

Oriani-Ambrosini concluded that the only way to avoid these absurdities is a
public domain exception and defence which clarifies that a piece of
classified information must be deemed to be in the public domain as soon as
it leaves the safe, which is to say as soon as it is no longer protected by
a chain of custody which allows it to be known only by those committed to
protecting its confidentiality and classification.

Cecil Burgess was outraged, claiming that Oriani-Ambrosini should have made
his point without disclosing secrets and that he acted in an uncivilized
manner. One would hope that Mr Burgess would agree that it would be highly
uncivilized to punish anyone for the possession or further disclosure of a
secret which in one way or the other has already been leaked.