Nelson Mandela’s former defence lawyer, and veteran human rights lawyer, George Bizos, has written to Parliament stating that the protection of state information bill is unconstitutional on several counts.

Bizos prepared the submission on behalf of the human rights organisation, Passop. His submission is just one of 293 written presentations that have been sent to the National Council of Provinces’ ad hoc committee.

The committee is processing the bill after the National Assembly passed it last year amidst mass demonstrations and public outcry.

Bizos, who now acts for the Legal Resources Centre’s constitutional litigation unit, said of the bill:

The current draft of the bill, as it stands, runs contrary to and indeed threatens many of the fundamental values and principles enshrined in the Constitution. We view a public interest defence as imperative. Such a defence would exempt from prosecution certain individuals in limited and appropriate circumstances where the disclosure has been made in public interest.

Aside from the public interest defence, Bizos highlights six other flaws that he says are unconstitutional.

Sapa clarifies another of the flaws:

In Bizos’s view, the bill would undermine the provisions of the Promotion of Access to Information Act (PAIA) of 2000 and its status as the supreme law giving effect to section 32 of the Constitution, in which citizens’ right to access to information held by the state is enshrined.

PAIA makes disclosure in the public interest mandatory in cases where the information would reveal the commission of a crime, or the existence of imminent public safety risk or environmental risk.

Section five of PAIA also states that it applies to the exclusion of any act that restricts disclosure or is materially inconsistent with its provisions.

Yet, the protection of state information bill in section 1(4) explicitly states that “despite” section five of PAIA, it trumps any other law relating to classified information.

Bizos explains this is simply an illegitimate proposal, and one that doesn’t allow those prosecuted for disclosing state information to argue in defence that it was wrongly classified to begin with:

Any proposed legislation that seeks to displace the clear provisions of PAIA also violates section 32 of the Constitution and is thus unconstitutional. The bill’s attempt to trump PAIA, a constitutionally mandated statute, is a further indication of the bill’s overall unconstitutionality.

This further ignores the practical reality that improperly classified information will be difficult, if not impossible, to detect and challenge without the efforts of investigative journalists and whistleblowers who will be hamstrung in their ability to bring these illegal classifications to light if they fear lengthy jail terms.

Pierre de Vos, a constitutional law expert, agreed with Bizos in this regard, as did Cosatu, to a degree.

Bizos goes on to point out the fact that the bill allows the minister of state security to confer the power to classify information on other ministers. This could present an obvious opportunity for corrupt individuals that would seek to cover their tracks.

This is where the Public Protector, Thuli Madonsela, joins the debate. She warned that such provisions could jeopardise freedom of expression and her ability to do her job because journalists and whistleblowers would be put off from reporting abuses.

Madonsela submitted a 20-page letter of her own highlighting grievances.

[Source: Sapa via News24]