Cwele urges parliament to make sure the secrecy bill trumps PAIA

Minister for State Security, Siyabonga Cwele, addressing the NCOP committee considering the Protection of State Information Bill (secrecy bill) on 31 October 2012, urged the committee to reinstate a provision in the bill that would see the bill trump the constitutionally mandated Promotion of Access to Information Act (PAIA).

Cwele insisted that it was "necessary and prudent" for the classification and declassification regime in the bill to prevail over the right of access to information in PAIA.

The version of the bill passed by the National Assembly included a clause that supported Cwele's position, but the NCOP committee considering the bill subsequently agreed to delete the clause, leaving the matter of which law will prevail to be determined by the courts.

As previously reported by SAHA, if the bill trumps PAIA it will allow the government to refuse access to information solely on the basis that the information is classified, effectively introducing a new ground for refusal into PAIA, placing a further restriction on the public's constitutional right of access to information.

Cwele also argued against restrictions in the bill that would allow only senior staff in the South African Police Service and the South African National Defence Force to classify information, instead arguing that all officials within those organisations should have the power to classify information.

Cwele also contended that the threshold for conviction for offences contained in the bill should be lowered, suggesting that the National Prosecuting Authority should not be required to demonstrate an intention on the part of an accused. In doing so the Minister likened the offence of espionage to that of theft, ignoring the difference in the level of the offences, and in particular that the offence of espionage in the bill carries a term of imprisonment of 15 to 25 years.

The committee must now determine whether to amend its position on these matters in light of the feedback from the Minister.

The committee's timeline for considering the bill has been extended until 30 November 2012.

Download Minister Cwele's presentation to the NCOP committee.