Extracts from a speech delivered by Luwellyn Landers, MP during the debate in the National Assembly: Protection of State Information Bill

16 November 2011

Speaker/ chairperson

It is widely recognized in international law and in our constitution that freedom of expression is not an absolute right and that it can legitimately be restricted if it harms national security.

However, all such exceptions must be accompanied by adequate safeguards to protect against their misuse by governments; and to ensure that the balance between freedom of expression and national security is properly struck.

Such safeguards feature prominently in the protection of state information bill and the exemptions are both reasonable and justifiable.

In his speech entitled "media freedom in south africa: the high road" delivered to the national press club on the occasion of the Percy Qoboza lecture, Prof. Kobus Van Rooyen sc said:

"National security would also place a limit on freedom of expression. Of course, the criteria according to which this is done, and the institutions who implement any classification, are crucial to the matter."

The Protection of Information Bill, even in its latest diluted form, has been subjected to severe criticism in the media and elsewhere. The Ad-Hoc Committee has limited its initial application quite considerably, a double-check by a review panel has been included, and in the case of the declassification applications, public interest is one of the criteria. In the case of a denial of such application, there is the possibility of a full appeal to a court".

"I have compared the Council of Europe’s Convention on Access to Documents and s15 of the Canadian Security of Information Act, 1985. The first allows for a public interest case to be made out for the release of a document. In other words, an application for disclosure must first be lodged. In Canada a person who works in the security establishment is permitted to publish within the stringent requisites of whistle blowing which the Official Secrets Act requires".

"Although I fully understand the necessity for a public interest defence in the Protection of Information Act, and still regard it as first prize, I am in doubt whether scrutiny by the constitutional court will lead to its inclusion in the act by the court in cases where persons are charged under the act".

"................... From this it follows that the court will probably find that, since the Protection of Information Act provides for an application to declassify on public interest grounds, and a journalist (and others) would have the opportunity to apply and even take the matter on full appeal to a court, the exclusion of the public interest defence in a prosecution is justified constitutionally. Of course, this limits the opportunity for a scoop. But in this case also, the bill places a duty on the organ of state to declassify within 14-days or, in some cases, within 30-days. Only a court may allow it to lengthen the period".

"Of course, an accused in terms of the Act would always be in a position to show that the classification which took place resulted from a fraud. Since the ad-hoc committee has introduced a review panel which would have to confirm all classifications, i doubt whether this defence will, in practice, have a wide application".

In other words, Prof. Kobus Van Rooyen expresses the view which is generally in line with the approach taken by the ANC on the public interest defence. Moreover, Prof. Kobus Van Rooyen clearly sets out the exemptions and the relevant safeguards which international law and our constitution demands of us.

Prof Van Rooyen’s Percy Qoboza lecture also sets out in clear terms the ANC’s reasons for rejecting the public interest defence.

The discourse around this bill has been characterized by vigorous debate, which is to be expected. But the discourse has also beecharaterized by vitriol, vilification, name-calling, insults usually found in a place called twitter, which is the last refuge of cowardice and most disturbingly, by blatant lies.

The right 2 know campaign held a march in Durban on 5 November of this year at which a memorandum was handed to the Ethekwini Mayor’s Office. Amongst other things the right 2 know campaign’s memorandum says:

• "any state agency, government department, local municipality and even a parastatal can be given the power to classify public information as secret;
• "anything and everything can potentially be classified as secret at official discretion if it is deemed to be in the "national interest"
• Commercial information can be made secret, making it very difficult to hold businesses and government to account..."

You would have more success in re-incarnating the dodo than you would have in finding "national interest" and "commercial information" in this bill.

These two paragraphs in the right 2 know campaign’s memorandum are nothing more than blatant lies. Elsewhere in this memorandum the Right2Know campaign sets out their demands. Some of those are:

• "limit secrecy to core state bodies in the security sector such as police, defence and intelligence".

The decision to restrict the bill’s application to the security services referred to in chapter 11 of our constitution was taken in July or August this year.

• "exclude commercial information from this bill";

Need I say more?

One wonders whether the Right2Know Campaign should now be referred to as the Right2Lie campaign.

Some very respected and responsible organizations, esteemed members of civil society and senior journalists are constituent members of the Right2Lie campaign. One also can’t help but speculate as to why they would lend their names to the drivel found in this memorandum.

Some time in the very recent past an article was carried in the local media which carried a statement by a family member of Ahmed Timol who in all probability was thrown off a building and died. The family member laments the fact that there is no law that assists people like those of his family who want nothing more than to know the circumstances surrounding the death of their loved one; but are unable to access any information relating to Ahmed Timol’s murder, because that information remains classified.

Critics and self-styled commentators on the Bill refuse to acknowledge the fact that a very large body of information emanating from the colonial era, to the apartheid era, until today is in the hands of the state and remains classified. Such information can only be declassified when this Bill becomes law.

Waiting for a legal instrument that authorises its declassification, such as the information relating to the murder of Ahmed Timol, that legal instrument is the bill before this house.