While the public protector, Thuli Madonsela, wouldn’t outwardly say that the current tabulation of the Protection of Information Bill was unconstitutional, she did say MP’s could be spared the embarrassment of having it declared invalid by the courts if they rethought certain aspects of the bill.

Madonsela was addressing MP’s yesterday on the second day of the public hearings taking place in Parliament over the contentious draft law.

She had no qualms about telling them that the bill, as it stands, would “severely” affect her work.

Madonsela told them that the bill would decrease her powers, and make investigations into state wrongdoing very hard for her.

The public protector is directly affected by this bill. We will not be toothless, but we are going to function under more onerous circumstances. Will I be affected? Yes, severely. At the moment I’m not chasing around trying to find out what documents came to my office and which police station do I rush to report it. I don’t want to do that. Unfortunately, Parliament has elevated the police above chapter nine institutions. Why does this democracy trust a police station above chapter nine institutions? What if I am arrested while I’m applying my mind? Probably the same could happen to journalists.

She raised issues with the obligation that clause 15 of the bill created for those who received classified information: they’d have to hand it to the police to avoid prosecution.

This created the risk of her being arrested while she was scrutinising any of the secret documents that get delivered to her office on an almost daily basis.

She responded as diplomatically as she could to ANC MP Nosipho Ntwanambi, National Council of Provinces Chief Whip, when Ntwanambi asked why a person in her post should not be treated in the same manner as ordinary South Africans:

When a member of Parliament says you should be subject to the same rights and responsibilities as a person in the street, it scares me. My responsibility is to be some kind of buffer between the state and the citizen. What I am asking Parliament to accept is that chapter nine institutions were created by you as an accountability mechanism, and you should give them the space to exercise that responsibility.

She also called for the inclusion of a public interest defence in the bill, rejecting the common argument that this would lead to the wholesale publication of state secrets.

Will it open the floodgates? No, I don’t think so.

She said such a defence would have to withstand an objective test on whether the public good derived from publication of a classified document outweighed the risk to the national security.

But, like many other critics of the legislation, she said its definition of national security was too wide, and this could lead the way for over-classification.

“You have the power to prevent this matter being settled by a court of law,” she told MP’s.

[Source: SAPA via News24]