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Big guns fire against Secrecy Bill

Publish date: 30 March 2012
Issue Number: 3006
Diary: Legalbrief Today
Category: Legislation

Veteran human rights lawyer George Bizos, appearing for the Legal Resources Centre, and Cosatu general secretary Zwelinzima Vavi (see report below) raised powerful arguments against the Protection of State Information Bill during presentations in Parliament yesterday.

According to a report on the IoL site, Bizos said the Secrecy Bill risked usurping the powers of the courts by making a proposed review panel the final authority on the correctness of a decision to classify information. 'Appointing a committee as the final, apparently, arbiter of whether classification was good or bad may be an exclusion of the courts' jurisdiction.' Bizos said this was one of seven fundamental flaws in the Bill that would almost certainly see it struck down by the Constitutional Court if passed in its current form. He pleaded for the inclusion of a public interest defence to balance provisions introducing prison sentences of up to 25 years for revealing state secrets. 'It will take a pretty brave man or woman to make something public in the public interest when there is uncertainty whether he or she is going to serve a long term in prison. To expose corruption and have to serve this sort of term in prison is undemocratic, it is unreasonable and the courts will not give effect to it.' He appealed to ANC MPs to use the same majority that allowed the ruling party to drive the Bill through the National Assembly last year, to refer it to the Constitutional Court for review. 'You have the necessary majority... Let us refer it to the Constitutional Court, the decision will be binding on everybody,' he said. Full report on the IoL site

Cosatu would be first in line to challenge the Bill in the Constitutional Court if it became law, Vavi told MPs yesterday. A report on the News24 site notes he warned that in its present form the legislation would put SA on its way back to becoming a police state. Vavi said the much-changed version of the draft law passed by the National Assembly last year still raised the spectre of widespread classification of information to conceal corruption. He said the scope of the Bill was too wide, the penalties it imposed disproportionate and the potential impact on SA's democratic values devastating. He said the Bill was ripe for constitutional challenge on several counts. Clause 4 (1) sought to usurp the Protection of Access to Information Act and Clause 43 reversed the onus of proof on those accused of publishing classified information. 'We have said if these types of clauses go through then we will be left with no choice but to approach the Constitutional Court.' Full report on the News24 site

Vavi made the point that public awareness was integral to holding state institutions accountable and acted as a check against irregularities, notes a Mail & Guardian Online report. In Cosatu's view, it was necessary to facilitate and enhance reporting and investigative journalism in the public interest. 'However, as the Bill currently placed extensive restrictions on access, possession and disclosure of classified information, it would necessarily severely curtail this objective,' he said. A public interest defence was necessary in the Bill, especially to support whistle-blowers and the media. 'We do not believe that there would be much scope for abuse, because the defence would not be available should a person not be able to demonstrate that there would be a public interest to protect or promote.' In fact, failure to prove a valid public interest defence would invariably result in the imposition of a criminal sanction, he said. Full Mail & Guardian Online report