Secrecy Bill not 'safe for democracy'

The spectre of journalists and whistle-blowers being jailed for the possession or publication of classified records hung like a black cloud over the hearings, according to a Mail & Guardian Online report. The SA National Editors' Forum (Sanef) and Print Media South Africa put forward objections in a written submission, and gave oral input, highlighting the absence of a public interest defence and other key issues of concern to both organisations. Sanef chairperson of the media freedom committee and Mail & Guardian editor-in-chief Nic Dawes told Parliament that despite very substantial improvements, the Bill still unfortunately fell 'far short', and the changes, while necessary, were not sufficient to finally render this law safe for democracy. In its current form, he said, the Bill would impose on both journalists and other citizens an untenable choice between our conviction - and the constitutional and common law mandate to expose wrongdoing in the public interest - and the law. Full Mail & Guardian Onlin report

It was also pointed out that the latest scandal around suspended National Police Commissioner Bheki Cele would have been buried if the Bill had been in force. The Sunday Times journalists who reported on Cele signing off on a dodgy R26m World Cup tender would have faced jail under the Bill, MPs were told by media lawyer Dario Milo, speaking on behalf of Sanef. According to a Mail & Guardian Online report, he said: 'If the Bill had been enforced and documents had been classified under the Bill, the journalists would be facing jail sentences.' Milo told MPs the journalists would have been prosecuted under Clause 43, a disclosure offence, and Clause 44, which dealt with possession of classified documents. It was 'a pretty serious consequence' to have the offences without a public interest counter-balance defence, Milo said. He said Sanef was proposing a more flexible public interest override when classified documents were requested, which would signal a firm commitment to transparency in democracy. Sanef also recommended that people who repeated information should not be punished. SA Human Rights Commission deputy chair Pregs Govender told the committee that information was central to building a human rights culture. Full Mail & Guardian Online report

Another example of the practical effects of the Bill was presented by Alison Tilley, of the Open Democracy Advice Centre. According to a report in Die Burger, she used the example of fraud at the State Security Agency's medical fund, which poses no threat for the state, but would not be open for scrutiny if the Bill were in force. She said the Auditor-General had been investigating the issue since the organisation raised the matter, but if the Bill was in place today, Tilley, her secretary, attorneys and a journalist who had obtained some of the information would probably have been behind bars. Tilley also cited several examples of countries that have public interest clauses to balance similar legislation to debunk the ANC's claim that such protections exist nowhere else in the world. Full report in Die Burger

A public domain defence was also punted as an option to create a balance. Such a defence would justify the possession of state secrets that had already been publicised by other sources. Lawyer Okyerebea Ampofo-Anti argued that the proposed measures (public interest and public domain defences) would prevent the potential abuse of the powers to classify state information without justification, notes a report in The Times. 'This balance will be correctly struck and the public interest and public domain defences in particular will counterbalance any potential for abuse in the classification regime and will also give effect to the values of accountability and transparency that were articulated,' she said. Full report in The Times

How the Bill would aid state corruption was also in the spotlight yesterday. Corruption Watch, launched by Cosatu just eight weeks ago, said it believed the Bill could undermine the fight against corruption, especially in the public service. According to a report in The Mercury, the NGO's executive director, David Lewis, said citizens were already afraid of reporting corruption, particularly in small towns 'where the risk of exposure to powerful and vengeful local political bosses and corrupt business leaders is particularly high'. He added: 'Their fear is of victimisation... of being placed on an unofficial supplier blacklist... of being selectively denied access to public goods and services like housing, and fear for their lives. The Bill... has added another dimension to their fear: a fear of formal and harshly punitive sanctions at the hands of the state,' he said. Arming people with information and providing citizens with the confidence and freedom to report corruption was the only way to fight it successfully. Lewis recommended the entire Bill be thrown out and existing information laws - such as the Promotion of Access to Information Act and the Protected Disclosures Act - be strengthened to protect the disclosure of information that genuinely threatened national security. Full report in The Mercury (subscription needed)

The ANC cannot fool South Africans into thinking there is broad support for the Bill, the DA said yesterday. A report on the News24 site notes that at a recent public meeting in Khayelitsha in Cape Town, the DA, along with all opposition parties in Parliament, committed itself to continue challenging the draft legislation in its current form and to push for significant amendments, DA spokesperson Alf Lees said. The DA's stance was emboldened by the objections about the Bill raised by a vast number of civil bodies, media institutions and members of the public arguing that the legislation infringed on the rights of individuals, posed a threat to media freedom and undermined the fight against corruption. 'Research conducted by the DA suggests that only 4% of South Africans support the Bill, which further necessitates comprehensive amendments to ensure that the Bill is aligned with our Constitution and the values of a democratic society,' the report quotes Lees as saying. Full report on the News24 site