Protection of State Information Bill belongs in the distant, paranoid past.

WITH Parliament's ad hoc committee having passed the Protection of State Information Bill, it's timely to assess this process.

We could have passed the first information law for the third millennium, but instead, we passed a law firmly within the mould of the 19th and 20th centuries.

While the bill is immensely better than that which State Security Minister Siyabonga Cwele first introduced, it does not address the outcry it elicited. Never before in our history has a bill evoked such widespread condemnation.

At first, the ANC ignored and resisted the public outcry, but when Cosatu, church leaders and broader civil society added their voices, the ANC realised it had to respond. At the centre of the outcry was the concern that the power for keeping information secret could be abused.

The ANC sought to address this by providing a state watchdog that would oversee other organs of state to ensure that such power is not abused - hence the provision in the bill for a Classification Review Panel (CRP) - a distant copy of the independent Human Rights Commission (HRC). The opposition, and indeed, the whole of our society, called for something more than an organ of state to ensure that the rest of the government does not abuse our liberties.

We wanted the power of civil society to be able to denounce with impunity what is wrong. This meant providing for a defence against conviction for those who break secrecy when the public interest for disclosure outweighs the need for secrecy.

This was the most contested part of the bill and was rejected throughout by the ANC, which argued that the CRP would be a sufficient guarantee.

I prefer to rely on the media than on the HRC and the public protector for the protection of my rights.

Over the past 16 years, the media has out-performed these two lethargic watchdogs. It is predictable that as a new watchdog, the CRP will also suffer from lethargy and cadre deployment.

We opposition MPs demanded the insertion of proper checks and balances, including the one that says if the required review of classified information does not take place at least once every decade, any classification must lapse.

The ANC provided no mechanism to address such a failure when it occurs through neglect or negligence. It relies instead on creating an offence only when malice or gross negligence are involved.

This would obviously require another watchdog to bring actions within a state apparatus ridden with gross negligence, and where the fine distinction between negligence and gross negligence has been lost.

Another important omission is the lack of any public domain defence, which is found in all established democracies. This may render the bill unconstitutional. Here the DA is to be blamed.

The ANC hinted that it would consider my amendment stating that information in the public domain could not be classified and that classified information falling within the public domain had to be deemed unclassified, while defining the public domain as a situation in which classified information is readily accessible by those without authorisation.

Contrary to the public interest defence that protects whoever leaks the secret, the public domain defence leaves the leaker open to prosecution, but would protect subsequent publication of the information, including by the media.

The DA argued this amendment was unconstitutional, misreading the Moseneke judgment in the Independent Newspapers case, which merely indicated that the public domain defence was not constitutionally required - a different thing from being constitutionally impermissible.

The ANC latched on to the DA's error and retreated from its willingness to consider the public domain defence. It also withdrew its assurance that it would provide an explicit defence for the disclosure of information that should have not been classified in the first place.

This is all very sad.

Probably, even the Moseneke judgment is open to reconsideration as the constitution allows limitations of fundamental rights, such as our right to know, to transparency and to access to government information, only when it is "necessary".

When the horses have bolted and secret information is out in the open, it may no longer be necessary to try to keep it secret.

Additional concerns about the bill include the broadness of definitions. And, administering the bill is bound to be unwieldy. A major compromise was reached in limiting the scope of the bill to the security departments, with provision for other departments to opt in.

Finally, as a reflection of the 19th century securocrat mindset, the bill provides excessive penalties for a paranoiac list of offences that are at odds with an open, information-based society.

l Oriani-Ambrosini is an IFP MP and a member of the ad hoc committee on the PSIB.