[notice]BREAKING NEWS: This afternoon the National Assembly voted in favour of the controversial Protection of State Information Bill that proposes draconian penalties for holding classified information, effectively placing a shroud of secrecy over Government activities. 229 MPs voted for the Bill, 107 voted against and two abstained. The National Press Club dubbed today Black Tuesday and called on people to wear black during the vote which it likened to an apartheid era press crackdown. Newspaper editors staged a walkout from Parliament. In this report Gateway News is posting, verbatim, reaction from various Christian spokesmen as it comes in. You are invited to air your view by commenting below.[/notice]
Public interest defence, public hearings essential — John Smyth, QC, director Justice Alliance of South Africa
Jasa comment regarding public interest defence:
We believe that a public interest defence is absolutely essential in our country where corruption, abuse of public spending and salacious lifestyles by ministers is so rife. A public interest defence means that a person charged with disclosing classified info will be able to plead in court that he acted in the public interest and the court will decide if that was genuinely so. The prison sentences are also savage and clearly designed to intimidate the media into submission. JASA is opposed to the Bill unless those changes are made.
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Jasa letter regarding public hearings:
The National Assembly has passed the Secrecy Bill. The battle moves to the National Council of Provinces (NCOP, )and JASA believes it must be waged with even greater determination.
We have deliberately kept our powder dry so far for two reasons. First to avoid duplication on so many of the issues now resolved before the National Assembly Select Committee; and more important, because we have all along known that, in a matter so controversial, public hearings must be held before the NCOP, certainly in plenary session, and almost certainly in the Provincial parliaments also.
If the next stage of the battle is to be effective, it is essential that every stakeholder and every concerned citizen understands his rights, and also the obligations imposed on the second House of Parliament and the Provinces. All this was a grey area until the Constitutional Court adjudicated on the case of Doctors for Life vs The Chairperson of the NCOP and others in 2006. I was responsible for driving that direct access case in which the Court struck down the Abortion Amendment Act because the NCOP and the Provinces had failed to hold adequate or proper public hearings. The fact that the Secrecy Bill is a ‘section 75 Bill’, whereas the Abortion Bill was a ‘section 76 Bill’ (since it related to health) does not affect the principles of procedure laid down by the Court which may be summarised as follows:
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1. The fact that public hearings were held by the National Assembly in no way alters the constitutional duty of the NCOP to comply with their duty, as a plenary body and in the Provinces, to ‘facilitate public involvement’ (sections 72(1)a and 118(1)a of the Constitution). The whole purpose of a second house of Parliament is that the Bill must be considered afresh by different elected representatives of the people. Any citizen or stakeholder may make his submissions for a second time to the NCOP, and to a Provincial Parliament as well if he wishes. By the same token, he is entitled to wait until the Bill reaches the NCOP.
2. Wherever a Bill is contentious or controversial the public must be invited to make submissions in writing and thereafter at public hearings. Corners must not be cut. “The timetable must be subordinated to the rights guaranteed in the Constitution, and not the rights to the timetable” (para 194 of the judgment).
3. These principles, said Justice Ngcobo giving the judgment of the court, lie at the heart of our constitutional democracy. Justice Sachs added his own concurring judgement; at paragraph 231 he said this: “In our country active and ongoing public involvement is a requirement of constitutional government in a legal sense. It is not just a matter of legislative etiquette or good governmental manners. It is one of constitutional obligation.”
It is important to note also that the consultations which the ANC claim to have held in the Provinces are totally irrelevant to these obligations which can only be fulfilled by the NCOP or Provincial Parliaments themselves.
JASA therefore urges every organisation and concerned citizen, whether or not they made submissions to the National Assembly, to re-group and prepare for the battle when Parliament opens again in February. JASA would be pleased to advise any person as to making a written submission.
So far as JASA goes, it will be central to our submission that this Bill provides a golden opportunity for the second House of Parliament to demonstrate that it is not prepared to be used by the ANC simply as a rubber stamp; but rather that it is an essential part of a true democracy.
Should the NCOP fail in this duty we shall have the right of direct access to the Constitutional Court under section 167(4)e of the Constitution. This means that apart from other challenges as to content which would only reach the highest court via the time-consuming route of the High Court, our challenge on procedural grounds would be issued directly the Bill is signed into law and heard within the year.
We believe that a public interest defence is absolutely essential in our country where corruption, abuse of public spending and salacious lifestyles by ministers is so rife. A public interest defence means that a person charged with disclosing classified info will be able to plead in court that he acted in the public interest and the court will decide if that was genuinely so. The prison sentences are also savage and clearly designed to intimidate the media into submission. JASA is opposed to the Bill unless those changes are made.
(JASA is a Christian-based coalition of corporations, individuals and churches committed to upholding and fighting for justice and the highest moral standards in South African society.)
“Media hypocrisy exposed” — Errol Naidoo, director Family Policy Institute
Despite massive public opposition, the ANC used its Parliamentary majority to railroad the “Protection of State Information” Bill through the National Assembly today (November 22, 2011).
The controversy surrounding this Bill and the ruling party’s methodology parallels the Civil Union Bill’s (same-sex “marriage”) passage through Parliament five years ago – almost to the day.
In Nov 2006, despite massive public opposition to legalising counterfeit marriage in SA, then President, Thabo Mbeki instructed the ANC majority to railroad the Civil Union Bill through Parliament.
The Civil Union Bill was an undemocratic and unjust piece of legislation just like the Info Bill. However, the liberal media applauded the ruling party’s unethical means of legitimising same-sex “marriage.”
The media got a dose of their own medicine today. In 2006 they praised the ANC for suspending democracy to desecrate the sacred institution of marriage. Today they condemned the same party for doing the same thing – suspending democracy to ram an unpopular Bill through Parliament.
The liberal media couldn’t have anticipated their 2006 support of the ANC’s undemocratic tactics would one day come back to haunt them. If the ruling party can railroad legislation through Parliament that is pleasing to the media, it can also railroad legislation through Parliament the media opposes.
The liberal media does not represent the public in their reporting as they allege. It mainly represents its own ideology and will align themselves with whomever advances their agenda.
Despite the media driven hysterics, the Info Bill will face the ultimate test of its constitutionality when it is challenged in the Constitutional Court. Everything else is mere posturing.
Bill protects corrupt – Rev Theunis Botha, leader CDP
By ramrodding the Protection of Information Bill through the National Assembly the ANC has not only made a mockery of its commitment to constitutional democracy, but has demonstrated in no uncertain terms that its care for the plight of the poor is a farce.
Corruption not only robs the poor, but ends up in stealing the very future of the country, and we can see no other reason for the present wording of the bill than the protection of the corrupt. We are convinced that the Act will not survive the judicial process of constitutional scrutiny, which will even further expose the intensions of the ANC and the ignorance of those who advised them.
Call for public interest defence — Steve Swart MP, ACDP
Last week we had a robust debate on the Bill. Today, the whole of South Africa watches as we in Parliament decide whether to pass this Bill in its present form, or not. The Bill has undoubtedly been substantially improved and credit must be given for all parties involved for this.
However, as we all know, the main outstanding issue relates to the absence of the public interest defence. The ACDP maintains its view that no compelling argument has to date been presented for not including such a public interest defence. As argued by media lawyer Dario Milo, if documents can be released under PAIA in the public interest despite the threat that the contents pose to national security, “it would be contradictory and unfair in parallel circumstances to criminalise the access, disclosure and continued possession of classified documents that are significant for the public.
Given the history of secrecy and oppression in our country, we should be setting the example of openness and transparency. That is why we inserted the public interest override in PAIA, which is unique worldwide.
Whilst we acknowledge that the insertion of a public interest override similar to that in PAIA goes some way to remedy the situation, we believe it falls far short of a public interest defence.
It is ludicrous to compel a journalist who is leaked classified information which exposes state fraud or corruption, or even an imminent danger to public safety, to first surrender that document to the local police station before applying for declassification or approaching a court of law. The mere delivery of that classified document to the police will no doubt result in the arrest of such journalists or at least a police investigation into that journalist’s source. This will result in the “chilling effect” on press freedom in the country, referred to by various commentators on the Bill.
At the very least, this public interest over-ride should be substantially expanded and strengthened. Why shouldn’t a journalist be able to go straight to court on an urgent basis to legitimise his or her possession of a leaked classified document? If a public interest defence will not be entertained by the ANC, then, at the very least this over-ride must be improved during the NCOP process.
It is significant that the Public Protector, Adv Madonsela, has now also expressed concerns on the exclusion of the public interest defence. She states that it is difficult to conceive of any situation where public power could be legitimate “if it cannot be defended through public interest.”
As I pointed out last week, we already have a public interest defence in our criminal law in the Films and Publications Amendment Act. Section 29 (4) provides that the offence of knowingly distributing a publication which advocates hatred based on race etc – and that constitutes incitement to cause harm, does not apply to a publication which “amounts to a bona fide discussion, argument or opinion on a matter of public interest. Our courts are thus well –versed in applying the public interest defence.
It would thus be the court – not the member of public or journalist – which balances the harm caused with the disclosure with the public interest sought to determine the public interest. Anyone who failed to persuade the court would face the possibility of imprisonment or a fine, depending on the sentence option followed. This would be a very serious deterrent to anyone casually tempted to disclose protected information.
Whilst today’s vote is not the end of the process and the NCOP, as well as the President will apply themselves to the constitutionality of the Bill, I still believe that we as parliamentarians should use section 80 of the Bill to forward the Bill to the Constitutional Court for its consideration.
In this regard, Speaker, Honourable Minister Cele, I never threatened the House last week during the debate – I merely urged members to seriously consider such a referral, given the huge public outcry surrounding the Bill. Is this not something that we as parliamentarians should seriously consider?
We have a substantially improved Bill, which, with the insertion of a limited public interest defence will correctly balance the right of access to state information with legitimate national security concerns. Let us not fail the nation in this regard!
The ACDP will not support the Bill without a public interest defence.
Return to dark days of Government interference — Danie Mouton, NGK leader in Eastern Cape
The vote in the General Assembly in favour of the Protection of State Information Bill represents a return to the dark days of government interference in the free flow of information. Our government is robbing us of our basic right to know. The open and transparant flow of information is the life blood of a democracy, a cornerstone of the protection of the common good, and of the pursuit of justice in an open society.
Christians recognise man’s capacity to sin, to be selfish, to serve his own interest, and to further his own cause to the detriment of others. Therefore accountability counts as a basic Christian value. The new Bill’s capacity to be misused to protect the corrupt from the scrutiny of a free press, means we are heading for disaster.
Whistle-blowers are also seriously discouraged. The moral fibe of people not willing to cooperate in corrupt practises often bring underhanded activities to the light.
SANEF’s declaration summed it up perfectly well: “It will again – as it was under apartheid – be up to those willing to go to jail for a very long time to expose the abuse of state power.”
Becoming more costly to be Godly — Philip Rosenthal, director ChristianView Network
It is a sad step towards “zanufication”, but not surprising once the bill is past committee stage, since parliamentarians in the ruling party never have a free vote and would lose their jobs if they didn’t vote the party line. It will make it harder to fight corruption. It also parallels the attempts to silence truth on abortion and homosexuality. It is becoming more costly to be godly.
This Protection of Information Bill has been stirring a lot of debate in our country. The voting in favour of this bill by the majority of MP’s marked what the media considers to a dark point in SA’s young democracy. SA’s media has been helpful in exposing corrupt activities that our politicians and the politically connected have been engage in. Indeed the media is responsible for publishing stories that have become the undoing of some people who mistakenly considered themselves to be untouchable. Indeed if the media did not break the story about the dodgy government leases entered into by the suspended police commissioner, how would things stand right now? Some well connected would be extremely rich at the taxpayers’ expense. These and other stories show us the value that free press play in a democratic state. Still the media does not always serves the interest of SA’s public. It also has its own narrow agendas it vigorouly pursues for its own benefit and that of its owners. Nothwistanding the blemishes of our media, it is better for us to have free press that have a press that is muzzled and the politicians and the powerful are allowed to abuse state resources with impunity. This story has also been attracting the attention of other media outlets who are watching the direction our country is taking. This and the contresery surrounding Walmart’s investment in Massmart has not been helping our international image. Of cause the direction we take has influence on other African states who are watching and learning from us.
God is still in control. Its easy to forget, but even if this bill is allowed, He has allowed it (for some reason). This might be a call for the Church to wake up. As Mr. Rosental says, “It is becoming more costly to be godly”.
we are moving into a reality in which our life in relationship with God will be required to move outside the comfort of buildings & edification, into the reality of life, perhaps even into jail. The question we, as people who live in relationship with God, will have to answer more often is, ‘will we be willing to live a life on the way to the cross’?
My thoughts are here: http://sevencitys.wordpress.com/2011/11/22/clicking-wont-cut-it-black-tuesday-again/
Theunis I read your thoughts with interest. Your recalling of the black Wednesday in 1977 brings back memories, as I was in my second year of newspaper journalism at that time and repressive media legislation was like a black screen through which we journos had to try and project what we saw going on in those days. I later worked as a journo in the repressive media environment of Zim in the early 80s, where people tuned in to the Beeb on their shortwave radios to try and find out what was really happening. You vividly sketch a scenario of a repressive era revisited — a full circle — an environment that protects the power elite and challenges men and women of character to consider costly action. I did not know Christ in 1977. I do now and so I look at the new blackness through different eyes. I am encouraged by the view of Jasa that the Secrecy Bill is not a fait accompli but that the battle is beginning as the issue must now be taken before the National Council of Provinces. There is hope yet. Time for many of us to become more informed and to prayerfully consider what we can do. Let’s pray for Christians in high places in the ruling party to find the boldness to take a Godly stand. There is still light. The black screen is hovering…
When so-called authorities seek to hide or legitimise their own corruption they are also sowing the seeds of their own destruction. What we must be careful as the church not to do is in any way to justify or ignore injustice. Sadly, history has shown that this can happen only too easily.
Though concerned again about our Government seemingly making another move to “prohibit” the public or the press saying anything against “it”, I must admit that the way of “negative” engagement we have seen the past decades never works. In “showing people up” an immediate defensive mode is engaged and hence we lose the opportunity of dialogue. In Isaiah 1:18 the Lord says: Come and let us reason together. This is hardly what we have seen happening, so it is no wonder to be treated like this. It is now time to pray for everyone to have a change of “heart” and be converted to “loving one another” IE to have the best for others in mind. That is for the government for it’s people, and the people for it’s government and to pray for it. By the time we come to the constitutional court we may see God saving us from ourselves once again. Let us pray.