The ad hoc committee on the Protection of Information Bill (the “Secrecy Bill”) entered the final stages of deliberations on Tuesday.

As the committee resumed its clause-by-clause deliberations, the chairman of the committee, Cecil Burgess, tabled a previously unseen version of the bill and ruled that any clauses on which consensus could not be reached would be taken to the vote, meaning that the ANC would be able to use its majority to force through contentious clauses.

Since public hearings were concluded in July last year, the committee has been engaged in sometimes painstaking discussion over the bill.

Following an outcry at the hostile manner in which the committee dealt with civil society submissions during the public hearings, the tone adopted by the committee appeared to soften, with an effort being made to consider the concerns raised by civil society and opposition parties.

In September and October, Minister of State Security Siyabonga Cwele made presentations to the committee that included concessions to remove two contentious aspects of the bill.
The first clause allowed classification of information deemed to affect the national interest, which was very broadly defined to include almost all government action – including the delivery of basic services.

The second envisaged classification of an equally wide spectrum of commercial information held by the state. These concessions, along with some whistleblower protection, were included in a revised draft drawn up by state law advisers in November last year.

Much of the subsequent discussion has focused on the harmonisation of the Secrecy Bill with the Promotion of Access to Information Act (Paia).

Burgess repeatedly postponed in-depth discussion on the other contentious issues in the bill. He argued that these could be dealt with at a later stage. It is now clear that this stage will never come.

Despite the apparent concession to delete the very wide definition of national interest, there was a continued insistence on retention of the inexplicably broad application of this restrictive bill to all organs of state. This would, for example, allow even the Natal Sharks Board to classify information. Also avoided was discussion of the harsh penalties for anyone who unlawfully receives or discloses classified information, despite circumstances of compelling public interest.

The failure to provide for an independent oversight and appeal mechanism will now become permanent. Whistleblowers will be compelled to rely on the narrow exceptions in the Protected Disclosures Act, applicable to employees only. Access to classified information on grounds of public interest will now depend solely on the already rather vague definition in Paia.

In Tuesday’s meeting, Burgess insisted that the important aspects of the bill had been discussed many times and that there was no need for more debate.

This not only contradicts the reassurances he has been giving for several months, but is inconsistent with the very spirit of our parliamentary system. Now that local government elections are over, it seems that constitutional values of participatory and representative democracy are being swept aside: elective democracy has been elevated to primacy.

The committee’s proceedings were suspended for several weeks in March while political parties represented on the committee were given the opportunity to make detailed proposed amendments to the bill. Many of these proposals reflected the principles endorsed by the broad-based Right2Know campaign.

By contrast, the revised draft prepared for the committee by the state law advisers and tabled on Tuesday does not include any of the opposition’s proposals. This draft is not much different from the one introduced in November and reflects no progress in harmonising access to information through Paia and this bill. This duplication will aggravate existing bureaucratic delays.

ANC members of the committee have complained about how long deliberations on the bill have taken and are adamant that sufficient time has been allocated to consider all the issues.

However, the committee has been sitting for only 12 months, with intensive deliberations beginning only after the public hearings. Even then, meetings have been intermittent and poorly attended by many members. Lawmaking is by nature an arduous, time-consuming process, particularly for legislation as complex and significant as this.

The committee dealing with the protection of private information has been meeting for two years and is only just concluding its work. The Child Justice Bill spent about eight years in Parliament.

The sudden unseemly haste, and the withdrawal of proposed concessions, can only raise suspicions about motives. State secrecy is a highly sensitive matter worldwide, precisely because of its susceptibility to abuse. In South Africa, with its past history and recent experiences of the abuse of state institutions for political ends, these concerns deserve respectful and deliberate attention.

This bill’s safeguards are inadequate. A blanket of secrecy looms, underpinned by harsh sanctions. Is this the country we are to become?

This article first appeared in the Cape Times, Friday, 27th May 2011.

Written by Gary Pienaar and Sithembile Mbete

Pienaar is senior researcher, governance and ethics, and Mbete political researcher in Idasa’s Political Information and Monitoring Service.