Johannesburg - The ANC's proposed amendments to the Protection of
State Information Bill appeared to be a step in the right direction, but
will be studied carefully, the SA National Editors' Forum (Sanef) said
"It seems clear that members of the committee have
decided that the legislation must reflect the fact that the vast
majority of those who made submissions on the bill called for a public
interest defence to be inserted, along with other important changes,"
Sanef chairman Mondli Makhanya and the forum's media freedom chairman
Nic Dawes said in a statement.
"Among other changes, the committee has proposed an
exemption from legal liability for the disclosure of classified
information that reveals 'criminal activity'," they said.
"Sanef will study this and other proposed changes
carefully, to determine whether what appears to be a step in the right
direction goes far enough to satisfy our serious concerns about the
potential negative consequences of the proposed legislation for freedom
of information, freedom of speech, and the health of democracy."
On Thursday African National Congress members of the
National Council of Provinces (NCOP) ad hoc committee processing the
bill proposed that section 43, which criminalises revealing classified
information, make an explicit exception for cases where "such disclosure
reveals criminal activity".
Under the proposal, this section would also enable
those charged with disclosure to argue in their defence that the
information was wrongly classified to begin with.
The ANC also moved to amend section 49 of the draft
act, which has been widely criticised for criminalising the disclosure
of information relating to any state security matter. The proposed
change would make it a crime only to reveal classified state information
relating to security matters.
The Right2Know (R2K) campaign said that despite
encouraging signs, ruling party MPs made it clear on Thursday that they
were not ready to deliver a full public interest defence.
In the latest formulation, they explain, those exposing
state secrets would face fines or up to five years in prison, unless
they were protected by South Africa's existing (though inadequate)
whistle-blower protection laws, or unless the exposure revealed unlawful
activities, or was made to fulfil responsibilities handed down by law.
R2K spokesman Murray Hunter said this protection only
applied to the offence in clause 43, and had not yet been made
applicable to offences contained in clause 36, 38, and 49 -– offences
which carry penalties of between five and 25 years, and currently have
no public interest defence.
"In other words, this protection is an improvement, but
is not meaningful until it is extended to all offences contained in the
bill," said Hunter.
He said in the ANC's proposed amendments, crimes of
“espionage” and “hostile activities" are still sufficiently far-reaching
that anyone who exposes information that could “directly or indirectly”
benefit a foreign state faces severe prison sentences of up to 25
"This still incriminates journalists and
whistle-blowers who are acting in the public interest, even if it may be
intended to apply only to true acts of espionage. "
He said two improvements to these sections have been to
remove prescribed minimum sentences, and to amend the offences so that
one is only guilty of a crime if one “knew” their disclosure may benefit
a foreign state.
Clauses 15 and 44, which make mere possession of
classified information a crime, remain. And, the department of state
security is still given complete protection in terms of clause 49.
Alf Lees, Democratic Alliance member for the NCOP, said
the proposed amendments do provide some protection to journalists and
whistle-blowers, but still don't go far enough.
He welcomed amendments which propose that journalists
and whistle-blowers be protected from prosecution if they reveal
information which discloses criminal activity, and that minimum
sentences be eliminated.
But the DA remained concerned about areas such as the
definition of “national security”, and offences such as the possession
and disclosure of classified information.
It regarded the committee's decision on Thursday to
extend its lifespan from May 17 to June 30 as a victory, following a
formal request by DA leader in the NCOP, Elza van Lingen.
The African People's Convention (APC) welcomed the
"bold move" taken in making the proposed amendments and was glad that
issues of public interest had been looked into.
"We agree that media should be constantly monitored and
regulated. However, declaring war against investigative journalism and
whistle blowing will not help us realise our dream of a corruption-free
South Africa," said APC spokesman Patrick Sindane.
The Congress of the People (Cope) chief whip in the
NCOP, Dennis Bloem, said: "This is a small but important victory. The
attempt by government to muzzle the media and punish whistle-blowers to
conceal scandals and corruption has already been dealt a blow. The
battle, however, has not yet been won."