Parliamentary speech on the Protection of State Information Bill

Note to editors: The following is an extract of a speech delivered by Dene Smuts MP during the second reading debate of the Protection of State Information Bill.

During the Mbeki era the Intelligence Ministry set itself the task of writing a law which would constitutionally answer these questions:

• What information may be classified?
• By whom?
• When should declassification occur; and who should do it?
• What procedures, what systems for review, what reports, what requests should be provided for?

But the questions were not answered in the 2008 Bill, which said that just about everything could be classified in the notoriously broadly defined national interest by almost everybody. The 2010/2011 ad hoc committee has now answered these questions.

What may be classified? Only sensitive information actually likely to cause demonstrable harm to the national security at three thresholds of damage. Our only remaining problem is the fact that the top secret level is not sufficiently distinguishable from the secret level. That is 99% of what the DA argued.

How is the national security defined? It is, as it should be, largely about keeping us safe against various forms of force. It is 95% of what the Hon. David Maynier argued and specifically excludes lawful political activity, advocacy, protest or dissent.

What may not be classified? What were once non-binding directions have at my request been turned into conditions, and constitutionalised: whereas the 2008 version asserted that secrecy exists to protect the national interest, the provision now reads, on our formulation following the International Covenant on Civil and Political Rights, that secrecy is justifiable only when necessary to protect the national security. All of us consider this "conditions" clause to be the real breakthrough in the Bill.

Who may classify? Only the security services, as we argued (as against all 1 001 organs of state), with the Minister allowing other departments on good cause shown to opt in after gazetting that fact.

When does declassification occur? We were ready to adopt Dr Verne Harris of the Nelson Mandela Foundation's recommendation for self-executing declassification. But do not underestimate the effects of the declassification provisions which we have adopted against the new, strict criteria; or the reporting and reviewing requirements. The creation of the Independent Review Panel is the ANC's idea, with the opposition invited to draft, and the Hon. Steve Swart doing the bulk of the work. The panel is independent and it can review, set aside and instruct reclassification. Why, despite all this, will we vote against this Bill? 

Because we think the offences, especially of possession and disclosure, and especially in respect of the intelligence services, offend against the right to receive and impart information.

Why is there a separate offence of possession and disclosure in respect of the intelligence services, but applicable to all persons? Let us never forget that Cabinet issued a directive in 2003 to spy on competition between and within political parties.

Let me quote one last time the Rev. Frank Chikane when he wrote (in a series for Independent Newspapers) that "corrupt intelligence services are the most dangerous threat to the security and integrity of the state".

Issued by Dene Smuts MP, DA Shadow Minister of Justice and Constitutional Development, November 16 2011

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