Trade union federation Cosatu says the scope of the Protection of State Information Bill is overly wide and creates the potential to establish and entrench a security state.
Cosatu secretary-general, Zwelinzima Vavi, tabled the federations objections to the Bill during a public hearing by the National Council of Provinces today.
He said Bill is not limited to security services and bodies as claimed by various proponents of the current version of this Bill.
Vavi says the Bill unduly encroaches on matters that should not fall under the scope of national security legislation or the Department of State Security.
An executive summary of Cosatu's submission to the NCOP is below:
Since its inception the process around the Protection of State Information Bill (POSIB) has been mired in controversy, and has also been subject to considerable misinformation from BOTH proponents and opponents of the Bill. While COSATU agrees that the POSIB is an information security bill and not a media bill, we differ sharply with arguments that casually dismiss the numerous substantive problems with the Bill that we have identified alongside other civil society organisations.
We agree that there is a need to enact security and information legislation. Further we agree that there is a need to replace the current 1982 Protection of Information Act, which is apartheid state security legislation. However, the POSIB needs to undergo substantial revision in order for it to fulfil its purpose appropriately without creating undue consequences.
In particular the values of openness, transparency and accountability must not be undermined. These are given expression in terms of the constitutional rights to freedom of expression and access to information under sections 16 and 32 of the Constitution, which in turn were drawn from articles 6 and 8 of the Freedom Charter.
In summary these are COSATU's views on the Bill:
Scope of the Bill
"The scope of the Bill is overly wide and creates the potential to establish and entrench a security state. It is not limited to security services and bodies as claimed by various proponents of the current version of this Bill. In terms of section 3(2)(b) of the Bill, it may be extended by Ministerial discretion to ANY "organ of state". This includes ALL levels and institutions of government, state-owned enterprises and private entities that have been declared national key points.
"The Bill unduly encroaches on matters that should not fall under the scope of national security legislation or the Department of State Security. Criminal contraventions of security legislation have considerably more serious connotations than contraventions of other types of legislation. Unless an actual threat to national security (as properly defined) is demonstrated, confidentiality of government information in OTHER sectors should be regulated through sectoral legislation and not through the POSIB.
"The Bill problematically proposes to regulate "valuable information". This in fact has nothing to do with national security but instead relates to information held in public archives, which in future will inappropriately be subject to the authority of state security machinery such as the National Intelligence Agency (NIA).
"State information may be classified in terms of the POSIB in the event that its disclosure threatens "national security". However, "national security is problematically defined in the POSIB to include "exposure of economic, scientific or technological secrets vital to the Republic" as well as "responsibilities to any foreign country and international obligations". So for example, should there be publication of the terms of the World Bank loan to Eskom or alternatively the terms of a loan made by South Africa to a foreign country, this would inherently violate diplomatic obligations to a multilateral institution or a foreign country, despite the compelling public interest to make transparent the usage of public resources.
No automatic declassification of pre-1994 state information classified by the apartheid government
"There is no provision for automatic declassification of information that was classified pre-1994 by the apartheid government. This is despite there being a broader vested public interest to provide closure for those who remain without answers to questions associated with the brutal practices of the apartheid regime. Instead the POSIB through section 55(2) allows for this information to remain classified, with any review and reclassification being subject to the ordinary day-to-day business of the Department and the NIA. Our view is that this information should be distinguished from other classified information and should be automatically declassified.
Trumping of PAIA and other legislation
"The POSIB states under section 1(4) that its provisions will trump the Promotion of Access to Information Act (PAIA) or any other legislation if it relates to access to classified information. This is despite the fact that PAIA already contains numerous and adequate safeguards that prohibit disclosure. Other legislation that may be affected by this clause under POSIB include:
i) Section 16 of the Labour Relations Act, which provides representative unions with the right to demand access to information in the course of collective bargaining.
ii) Section 31 of the National Environmental Management Act, which provides detailed protection for access to information and whistleblowers.
iii) Sections 26, 31(3) and 45(5) of the Companies Act provide for the rights of access to information for trade unions and shareholders. Most state-owned enterprises and privately owned national key points are registered as companies under the Companies Act.
On whistle blowing
"The Bill criminalises unauthorised possession of classified information under sections 15 and 44. Under section 14 any person who "aids, induces or counsels another person to commit an offence" is also guilty of an offence. This provision does not distinguish wilful criminal intent from the actions of those who are providing support for blowing the whistle on corruption. This would have the effect of criminalising the obligations of trade unions to assist whistle blowers.
"The POSIB under clause 43 provides ineffectual protection of whistleblowers by stating that it is not an offence to make a disclosure in terms of the Protected Disclosures Act (PDA) and the Companies Act. This ignores the fact that entire categories of whistleblowers are not protected by either of these two Acts. The PDA applies only to employees and the Companies Act would apply to state-owned companies and not government departments.
"Furthermore if a person obtains, possesses or discloses classified information but is not authorised to do so, section 43 would be of no assistance. This would make lack of authorisation the greater offence even against a serious irregularity that has been exposed by such an unauthorised disclosure.
"Absolute exclusion of ANY whistle blower protection is imposed in respect of state security matters, which relates to operations of the NIA. There is no justification for this special treatment.
Hostile activity offences and espionage
"Clauses 36 and 38 respectively prohibit the disclosure of information that would benefit a foreign state or would prejudice the national security. We are unequivocally opposed to the promotion of espionage or similar activities hostile to the state. However, the wording in the Bill is so broad that it would have the effect of imposing criminal responsibility even against individuals who are merely blowing the whistle in the public interest.
On the public interest defence
"COSATU acknowledges that there is a need for an appropriately drafted version of state information security legislation. This would mean, that even after addressing the technical problems noted above, we would have to accept that some restrictions must be placed on access to and disclosure of legitimately classified information. Accordingly there is a need for a safeguard that would act as a counter-balance to legitimate restrictions where the public interest warrants it. On this basis we maintain our support for the introduction of a public interest defence, which we believe should be available for whistle blowers and the media.
