Information Bill unconstitutional

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Polity

Article by: Sapa

Published: 22 Jul 2010

Information Bill unconstitutional — lawyer

Lawmakers were warned again on Thursday that the Protection of Information Bill would not survive Constitutional Court scrutiny because it rode roughshod over media freedom and the democratic values of transparency and accountability.

"The ones (clauses) I have highlighted are clearly unconstitutional and the Constitutional Court would strike them down," said Dario Milo, a partner at Webber Wentzel law firm, making a representation on behalf of Print Media SA.

He was addressing the ad hoc Parliamentary committee on the bill during a second day of marathon hearings.

Milo noted that the bill - meant to replace an apartheid-era law dating from 1982 - could see investigative journalists face up to 25 years in jail for publishing information of public interest.

It went even further by denying those accused of contravening it the right to raise the defence of having acted in the public interest.

Like others who have objected to the bill, Milo argued that it sought to create a climate of secrecy by defining national interest and national security so widely that information could arbitrarily be classified.

"The bill permits classification of documents that ought not to be classified at all in a constitutional democracy. This results in excessive secrecy and censorship of political expression," he said.

"The bill endorses this secrecy by creating overbroad definitions of concepts such as 'national interest', 'security', 'state security' and 'national security' and then allowing classification based on speculative harm to these nebulous concepts."

Those who drafted the bill had also erred by placing the onus on journalists to justify why they should be granted access to information, rather than requiring the State to show why it should remain classified.

Raymond Louw, chairperson of the South African National Editors' Forum, submitted that the bill gave the State excessive powers to shroud information in secrecy, and had been stripped of safeguards contained in earlier versions.

"This has tightened the State's grip on maintaining secrecy of information.

"It also has extended the powers of politicians over the classifying of information."

He said that an earlier incarnation of the bill, which has been on the drawing board since 2008, contained the cautionary clause that if there were doubt on whether something should be classified, it should not be.

However, this has been replaced with a clause saying that in such cases the decision should be left up to the minister of state security.

"This introduces political decision-making to what should be a decision based on factual criteria," Louw said.

Members of Parliament (MPs), including committee chairperson Cecil Burgess, repeatedly argued that the bill was essential to ensure the smooth functioning of South Africa as a democracy.

Burgess said he doubted that it could be unconstitutional since it had been drafted by lawyers and used the discredited Browse Mole report compiled by the Scorpions as a supporting argument for the need for a restrictive information bill.

The Browse Mole report, which was leaked first to the Congress of South African Trade Unions (Cosatu) and then to the media, was a prime example of information that should have been investigated, but not published because of its disruptive effect on public life, Burgess said.

This was contested by investigative journalist Stefaans Brummer, who recalled that the leaking of the report forced former President Thabo Mbeki to order an investigation into its origins.

This brought to light the abuse of the Scorpions for political ends, and eventually led to the demise of the unit.

"Public interest was certainly served. The Scorpions' illegal information gathering activities were exposed," Brummer said.

He pointed out that if the current bill had been on the books at the time the Browse Mole report was leaked, senior Cosatu officials including the trade union federation's general secretary Zwelinzima Vavi, would have been jailed for their role in making it public.