Why POIB doesn't need a public interest defence - Ben Fihla

ANC MP says such a clause would protect those engaged in espionage and hostile activities


Mr Speaker; 
Honourable Members;
Ladies and Gentlemen;
Fellow South Africans; 

I join the debate in support of the Bill heeding the call from members of our glorious movement, the ANC, to push on with making South Africa secure.

A lot of has been said about the issue of the public interest defence and the public domain defense. These proposals we regard as the African National Congress as a recipe of turning the Republic into a banana republic and therefore reject as a movement. This is more so in light of the attempt by some in the media to attribute groundlessly, interpret and infer contrary positions to some of the leaders of our movement.

Those who advocate this defence describe it as a defence that enables a person who disclosed classified information to argue that such disclosure was done in the public interest. This provision is sought by those who claim to protect whistleblowers when they expose maladministration, corruption and other criminal wrongdoing within the government.

Mr Speaker,  we remain convinced that such a defence is not only undesirable but is also unnecessary given the extensive work that we have done to ensure that this Bill provides adequate avenues for access to information and protection of whistleblowers. The checks and balances are in place.

With respect to the latter, there are express provisions in the Protected Disclosures Act, 2000 which has been aligned with this Bill. The disclosure of classified information through the established channels in the Protected Disclosures Act would neither be an offence nor attract a penalty as the whistleblowers are protected accordingly. It therefore stands to reason that there remains no legitimate justification for public interest defence for whistleblowers. 

As the bill stands, it criminalises wrongful classification- on the part of the officials- to hide corruption, maladministration, inefficiency, embarrassment and malfeasance. Mr Speaker, those who dare classify wrongfully face heavy sentences of up to  15 years in jail. This demonstrates our seriousness and commitment, as the ANC, to clean administration. 

With regards to access to information, contrary to deliberate attempts by those opposed to the Bill, we have aligned this Bill very closely to the Promotion of Access to Information Act (PAIA), 2000. We have even gone a step further by  inserting a clause that allows for  information  which relates to ‘an imminent and serious public safety or environmental risk',  to be provided within 14 days- a period faster than PAIA- if the public interest to disclose it is higher than keeping  classified. By shorting the turnaround times, we have clearly demonstrated our commitment to balancing openness and national security that the Constitution demands. 

Mr Speaker, the provisions I have just referred to nullify the calls for such a defence as the Bill provides for clear procedures and processes under which information- whether classified or not- can be requested and accessed accordingly.  

The question therefore that must be asked is: who are these demands for such a defence seeking to protect?  

In our view such a demand seeks to protect sources for foreign intelligence services (espionage), those sympathetic to non-governmental actors involved in unconstitutional activities (hostile activities) or those who disclose classified information outside channels and legal due process. In the case of the media - it is their sources that are now out in the cold. For this undisclosed and unclassified reason the Bill will have a chilling effect if they operate as outlaws. This is the un-disclosed; and classified reasons for public interest defence. 

Mr Speaker, in respect of the public domain defence, our courts have spoken on this matter and we urge those themselves with the position of our Constitutional Court. Classified documents that have been leaked in the public domain do not and cannot lose their classified status outside the conditions for classification and declassification. This is the simple message. Nothing more; nothing less.

We remain resolute that this Bill has addressed all the legitimate concerns that the public has raised.

 I thank you

Issued by the Office of the ANC Chief Whip, November 16 2011

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