The Protection of State Information Bill is once again hogging the deadlines, this after the Minister of State Security, Dr Siyabonga Cwele appeared before the Adhoc Committee in the National Council of Provinces (NCOP), this week to respond to the proposed amendments made by the Committee.
The Minister was responding to a request by the Committee to appear before it and to provide the department’s input on the work that the Committee has been busy with, this given the department’s central role in the implementation of this crucial piece of legislation.
Three things formed part of the Minister’s central message to the Committee and to South Africans who have shown a very keen interest in the deliberations on this bill:
In the first instance, the Minister welcomed the work that has been done by the Committee in trying to improve this bill. In welcoming this work, the Minister emphasised that the intention of the department is to have a bill that is constitutionally sound and one that allows the department to discharge its duties in terms of its mandate.
Secondly, the Minister indicated that there are unintended consequences that arise from certain proposed amendments to the bill which require attention, given that they will make the bill unworkable. One such amendment dealt with changes to the definition of “head of organ of state”. Whilst the department welcomed the exclusion of municipalities from being given the power to classify, reclassify and declassify, the department was concerned that the resultant amendments would effectively exclude municipalities from their responsibility of protecting valuable information.
This was never the intention of the NCOP. The other such amendment dealt with the unintended definition of ‘valuable information’ which would have transformed it into the category of classified information, which is protected from unlawful disclosure. This protection from disclosure would have made the use of this category of information impossible whilst it is, by its nature, required for daily interaction in our economy, trade and commerce.
Furthermore, the Minister brought to the attention of the NCOP that in the change made to the opt-in clause, an unintended constitutional error was committed in that the proposed amendment would have fettered parliament’s power to approve organs of state that opt-in by providing that if it does not approve such requests within thirty days, the requests would be deemed to have been approved. Such a provision would have been unconstitutional even if approved by parliament.
In every instance, the feedback from the department dealt with constitutional, legal or administrative implications of proposed amendments.
The last point made by the Minister dealt with the need to provide legal certainty on the need for this Bill to prevail in terms of any conflict with any other legislation when it comes to the treatment of classified information, as this Bill is the only one that deals with classified information.
Our input was therefore made in the spirit of ensuring that the legislators emerge with a piece of legislation that is constitutionally and legally sound and above all workable. We would be failing in our duty if we don’t point out certain issues that require the attention of those who are responsible for writing our laws. It is in the public interest that we do so and we will continue to contribute towards the strengthening the constitutionality of this Bill and making sure it can be implemented.
We remain convinced that the Committee will use its collective wisdom to emerge with a piece of legislation that reflects both the tenets of our constitutional democracy and the need to protect our national security and help heal our nation from undue divisions and controversy.
Enquiries:
Brian Dube
Cell: 082 418 3389
