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Sun Sep 25 17:44:31 SAST 2016

ANC 'won't allow' public-interest defence

ANNA MAJAVU | 01 September, 2011 00:4553 Comments
Protesters take part in a silent march in Johannesburg on October 19 2010 to protest against the Protection of Information Bill in this file photo.
Image by: Reuters/SIPHIWE SIBEKO

Journalists will face up to 10 years in prison under new secrecy laws if they publish classified information without first asking the government to declassify it.

The ANC told parliament's committee debating the Protection of Information Bill yesterday that it would not allow a "public-interest defence" to be written into the bill as that would place journalists in a class of their own.

The "public-interest defence" proposed by opposition parties provides that journalists would not be convicted for publishing classified information if they could prove in court they had done so in the public interest.

This would apply to exposing corruption, a looming serious public safety or environmental risk or if the document was classified only to save someone embarrassment.

The ANC plans to use its committee majority to push through the bill by the September 15 deadline. Opposition parties and civil-society groups have vehemently criticised the ruling party's decision.

The SA National Editors' Forum last night said it was deeply concerned by the committee's deliberations, saying that without a public-interest defence, the bill would be ''an anti-democratic and unconstitutional law''.

Cosatu, the ANC's alliance partner, has threatened to challenge the bill in the Constitutional Court if it failed to protect whistleblowers.

Cosatu parliamentary officer Prakashnee Govender said yesterday it was worried by the ANC's stance on a public-interest defence.

"There is not adequate protection in this bill for whistleblowers who blow the whistle in the public interest on corruption and irregularities," Govender said.

"We were under the very strong impression that we could still discuss this with the committee.

"If there are moves to take this bill to the house for voting soon, then we would definitely ask our members for a mandate to see what further action we are going to take."

Murray Hunter of the Right2Know campaign, set up to oppose the bill, condemned the ANC's decision against a public-interest defence.

"It is a red herring for the ANC to say this is about protecting journalists. A public-interest defence is about protecting everyone because everyone is equal in the eyes of the law," Hunter said.

"Whistleblowers' lives and jobs are already targeted at every level.

"The very purpose of a public-interest defence is to say that anyone - from the tea lady to the president - should be protected under the law if they have the courage to blow the whistle."

The ACDP, DA and IFP have tried for weeks to persuade the ANC to accept such exceptional circumstances, but the ANC said yesterday its final decision was "no".

"What members of the opposition have been saying is that a journalist coming into possession of a classified document must be allowed to publish it regardless," said ANC MP Luwellyn Landers.

Landers said that the editors forum's Raymond Louw had argued against special exemptions for the media.

According to Landers, Louw had said that "the basic principle of journalism is that journalists had neither any extra powers nor any lesser powers than the ordinary individual" and that journalists were not in a class of their own.

Landers suggested to MPs that they use their parliamentary privileges - which gave them certain rights to reveal secret documents without fear of prosecution - if they wanted to leak classified documents.

In response, DA MP Dene Smuts said that this would place MPs in an elite category.

"Anybody, anywhere must be in a position to reveal theft and corruption. What are we doing, writing a law which does not make it possible for them to do that thing? It is just a defence in court. If they got it wrong, they would still go to jail," Smuts said.

ACDP MP Steve Swart warned the ANC that if it did not change the clause in the bill, the first journalist who was sentenced to 10 years in prison for disclosing state secrets would rush straight to the Constitutional Court, which was likely to reject the law in its entirety.

There was also heated debate over the bill's information-peddling clause to make it a crime punishable by up to five years in prison for any person to give South Africa's national intelligence structure information that was fabricated.

However, it would not be a crime for intelligence operatives to give fabricated information to the public - or to the ruling party.

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