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http://www.mo neyweb.co .za/mo neyweb-cro ss-currents/the-key-o bjectio ns-to -the-secrecy-bill

The key objections to the secrecy bill


CAPE T OWN - Years of work, over 100 meetings, 800 amendments and vocif erous proteststhe Protection of State Inf ormation Bill (POSIB) has been on a rollercoaster ride indeed. But while the bill was passed by the National Assembly on T hursday, theres a long haul ahead. Opposition political parties and activists look set to head to the Constitutional Court (ConCourt) if President Jacob Z uma chooses not to ref er it back to the National Assembly. Over the past year, the so-called Secrecy Bill which was labelled draconian and a dangerous cover-up - has been signif icantly re-draf ted. But a range of players believe there are still serious f laws. Chairman of Pick n Pay, Gareth Ackerman, told Moneyweb he is still concerned about the legislation. T he bill is an improvement on the initial draf t, but it is my view that it will not pass constitutional muster. Ackerman spoke out strongly against the legislation in 2010, when he said that the bill in its f orm at the time, had the potential to scare of f f oreign investors and blunt the rights of consumers. He was something of a lone voice in the business community. T his week, he acknowledged that the redraf ted bill was a big improvement, but that it still raised concerns about limiting the f ree f low of inf ormation. We must take great care to protect f reedom of the press, particularly given how hard we f ought to secure it, he said. So what are the key objections to the legislation? Provincial archives T he 1996 Constitution made provincial archives, which includes provincial record-keeping, as an exclusive provincial competence. However, in terms of the bill, provincial archives are still subject to the POSIB. T he DAs Dene Smuts says the Western Cape has passed its own Provincial Archives and Record Services Act to govern public records. T he State Security Ministry and the intelligence services have no business with those records. It is our contention that Parliament should not be legislating at all where exclusive provincial competencies prevail. T his concern is shared by the Af rican Christian Democratic Party amongst others. T he DA and other opposition parties believes the legislation should been tagged as whats known as a Section 76 bill, which would allow f or proper provincial scrutiny. Narrow protection for whistleblowers T he Right2Know Campaign, says its biggest concern it that it believes the bill only has narrow protection f or whistleblowers and public advocates, as the legislation does not include a f ull Public Interest Def ence. T his excludes a range of matters in the public interest like shady tendering practices or improper appointments within key state agencies. T his half -measure f ails to acknowledge the urgent need to address South Af ricas whistleblower crisis, said Right2 Know.

While the Bill limits the number of agencies and people that can classif y inf ormation, it still gives powers to the Minister of State Security to give classif ication powers to other state bodies and junior of f icials without adequate public consultation. Cosatu has also objected. It says despite changes to the bill, its still open to allow just about any state inf ormation to be classif ied. Criminal liability for espionage Right2Know says it worried that people can be charged with espionage. receiving state inf ormation unlawf ully (to benef it a f oreign state) and hostile activity without proof that the accused intended to benef it a f oreign state or hostile group or prejudice national security. T he ACDP has also expressed its concern about what it sees as the low burden of proof placed on the state in cases of espionage. T his was an issue raised by Advocate George Bizos during the hearings, but opposition parties says it seems to have been ignored. Harsh sentences Right2Know has described the sentences f or transgressing the bill as draconian. T he Bill contains a maximum sentence of 25 years. Members of Parliament f rom across the spectrum and activists have acknowledged that the changes over the past year have been substantial. But they want more. T here have been changes clause by clause, but as a bigger picture, we see it as a step backwards, as it still has a chilling impact on the access to inf ormation. T here is still an unreasonable restriction on the publics right to know, Right2Know spokesperson, Murray Hunter, told Moneyweb. If all else f ails, opposition parties seem resolute that they will challenge the bill in the Constitutional Court. T he Minister of State Security, Siyabonga Cwele, says hell welcome this. As we have always maintained, the calls f or a constitutional court challenge of the bill are taken in the spirit of our country being a constitutional democracy. We would theref ore welcome such an action as it is provided f or by our constitution and indeed there is nothing to f ear in this regard, he told Parliament. T he ANC sees the bill as a good balance between the constitutional provisions of access to inf ormation and limiting access in the interests of advancing national security. Its satisf ied that enough compromises have been made. But a possible ConCourt challenge and protests may keep the Secrecy bill in the news f or a while yet. Right2Know says theyre using Freedom Day, Workers Day and World Press Freedom Day on May 3 to highlight their concerns through workshops, pickets and protests.

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