After steadfastly refusing to include a public interest defence clause in the hotly contested Protection of State Information Bill, the ANC on Thursday night appeared to open the door a fraction by proposing several significant changes to the current version of the bill.
Although the proposal does not, strictly speaking, amount to a public interest defence, it is by far the closest the ANC has come to offering protection for those who reveal classified information in what could be deemed to have been in the public interest.
In another significant concession, the ANC has proposed that minimum prison sentences be scrapped altogether.
ANC delegates to the National Council of Provinces’ (NCOP) ad hoc committee dealing with the bill dropped a bombshell when they formally proposed amendments to the draft that would seem to protect citizens from prosecution if they reveal classified information that exposes “criminal activity”.
The ANC’s proposed amendments would protect anyone who disclosed information that was wrongly classified by officials to hide “an unlawful act or omission, incompetence, inefficiency or administrative error” – or to avoid “embarrassment, scrutiny or criticism”.
Civil society organisations have demanded such a defence since the State Security Department introduced the bill in Parliament in 2010.
The current draft prescribes minimum prison sentences ranging from three to 15 years for contraventions of the law.
However, the ANC stopped short of removing or lowering the maximum sentences prescribed in the bill, which range from five to 25 years.
It also suggested that the threshold for committing an offence under the proposed law be lowered by removing the phrase “ought reasonably to have known” wherever it appears in the draft law.
Currently the bill states, for instance, that an espionage offence is committed if a person unlawfully and intentionally reveals information classified as “top secret” and which that person “knows or ought reasonably to have known” would directly or indirectly benefit a foreign state.
The ANC’s proposal reads that such an offence is committed only when a person reveals secret information which the person “knows” would directly or indirectly benefit a foreign state.
In yet another about-turn, ANC MP Siphiwo Mazosiwe suggested that someone could be guilty of “harbouring or concealing persons” who had committed or were about to commit an offence of espionage, or what is termed a “hostile activity offence”, only if they “know” this to be the case.
State Security Minister Siyabonga Cwele had earlier, during his budget vote debate in the National Assembly, referred to some MPs as “still crying” for the inclusion of a public interest defence clause, which he has steadfastly opposed.
The SA National Editors Forum said it “notes the changes proposed” to the bill.
It said it would “study” the proposal to protect those who exposed criminal activity through revealing classified information 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”.