MPs are expected to spend the coming weeks trying to harmonise the contentious Protection of Information Bill with liberal post-apartheid laws that guarantee access to information.
This emerged as state law advisers on Friday briefed Parliament’s ad-hoc committee redrafting the Bill on juggling the requirements of the Promotion of Access to Information Act (PAIA) with the new legislation, widely criticised as an attempt to enshrine a culture of state secrecy.
State law adviser Carin Booyse said the issue was whether there was a hierarchy of legislation, and which law would hold sway where they clashed.
There is a presumption in South African law, she said, that the Bill, being the most recent legislation, would trump PAIA if the two were seen to be in conflict. However, it must be remembered that there was also a provision that Parliament cannot “legislate willy-nilly”, meaning that legislation it drafted “must make sense”.
Seized upon
The issue was seized upon by opposition MPs who have, along with rights activists, insisted that the Bill must be redrafted to be compatible with the PAIA’s provisions.
The Inkatha Freedom Party’s Mario Oriani-Ambrosini argued that to remove any confusion, “the Bill must be made subject to PAIA in case of any inconsistency”.
The African Christian Democratic Party’s Steve Swart said the PAIA enjoyed pre-eminence as “a constitutionally mandated piece of legislation” and that MPs therefore needed to respect the very specific provision it makes for releasing information in the public interest.
This has been a tender point in arguments on the Bill, as the ANC has refused to write a so-called public interest defence into the Protection of Information Bill to protect journalists who disclose classified information.
Dene Smuts from the Democratic Alliance said it was explicitly clear that “this law which gives effect to the right to access to information applies to the exclusion of any other law that tries to restrict disclosure of records and any other law that is materially inconsistent with an object of this act.
“It is our duty therefore to write a law that can sit alongside PAIA.”
ANC committee chairperson Cecil Burgess said there was a misguided view that MPs did not have the right to write laws that would override PAIA, or to change it outright.
Booyse said the state law adviser’s office would go through the Bill in detail to identify any areas on conflict with PAIA. She said the aim was to seek to harmonise the legislation.
Burgess on Friday confirmed that he had asked the legislature to extend the lifetime of the committee for a third time, which would enable it to carry on its work next year.
National outcry
Following a national outcry over the far-ranging powers the original version of the Bill gave the state to keep information under wraps, the ANC has backtracked on two provisions.
With State Security Minister Siyabonga Cwele’s blessing, MPs have now removed the vague notion of national interest as a cause for classification, as well as provision for the classification of commercial information.
The latter was criticised as a recipe for covering up fraud.
The committee met while Cwele was meeting with representatives of the South African National Editors’ Forum to discuss concerns about the impact of the Bill on media freedom. — Sapa