Secrecy Bill: Too early to celebrate

JOHANNESBURG - The Council for the Advancement of the South African Constitution (CASAC) notes that the announcement by President Zuma that he has referred aspects of the Protection of State Information Bill (POSIB) back to the National Assembly in terms of section 79 (1) of the Constitution.

He has said that clauses 42 and 45 "lack meaning and coherence … are irrational and … unconstitutional". [It would appear that the President actually meant to refer to clauses 45 and 48 of the Bill passed by Parliament.]These descriptions could more forcefully be applied to a range of other draconian clauses of the Bill.

The Constitution requires a system of government that is accountable, responsive and open, and provides for the principle of access to information in section 32 of the Bill of Rights. This right has been enshrined in the Promotion of Access to Information Act of 2000 (PAIA).

This system of openness is premised on the notion that the free flow of information is essential for a democratic society to flourish; information is the oxygen of a democratic system. It facilitates the assertion of socio-economic rights in particular by citizens - without access to information, these rights would merely be empty promises. Of particular concern is that PAIA appears to be trumped by POSIB in that the provisions of PAIA would not apply to classified information.

It is against this background that many civil society organisations opposed the Protection of State Information Bill (The Secrecy Bill) which seeks to provide for the classification of state information, and for offences related to the disclosure of classified information. The Bill went through a long and contentious process in both houses of Parliament.

Whilst the final version passed by the National Assembly was quite different to that introduced in Parliament in 2010, the concessions that were extracted do not address all the concerns.

Among the other outstanding concerns are issues relating to a proper public interest defence for the disclosure of classified information by whistle-blowers or the media; inadequate protection for whistle-blowers; ensuring compatibility with PAIA. In short the constitutionality of the scheme of the Bill is in question.

President Zuma had two options after Parliament passed the Secrecy Bill in April this year:

  1. He could have assented to the Bill and signed it into law;

  1. He could, as he has done now, refer it back for reconsideration by the National Assembly.

If he had signed the Bill, the opposition parties could, if they could muster the support of one-third of the members of the National Assembly, have referred the constitutionality of the Bill for determination by the Constitutional Court. They would have to give reasons why they believed the Bill to be unconstitutional.

Now that the President has referred the Bill to the National Assembly they will have to consider the reservations of the President, and re-submit it for his assent. However, the President has not spelt out the reasons why he has reservations with clauses 45 and 48 of the Bill and how he would like to see those clauses remedied. It is to be hoped that the Committee appointed by the National Assembly to deal with this matter will be advised by the Presidency of the full reasons for the referral and the President's reticence to sign the Bill.

Once the Bill is returned the President can then either sign the Bill into law if his reservations have been satisfied, or refer it to the Constitutional Court to determine its constitutionality.

Whilst the National Assembly, in reconsidering the Bill, will be restricted to those parts of the Bill that the President is uncomfortable with, the Constitutional Court will not be so hindered and could look at the entirety of the Bill for its compliance with constitutional principles.

It is assumed that other interested parties would then apply to be admitted as amicus curiae (friends of the court) to raise other issues beyond clauses 45 and 48.

Clause 45 deals with the improper classification of state information to conceal corruption or other unlawful activities or incompetence and makes it an offence to classify information for these ulterior purposes.

Clause 48 requires the authority of the National Director of Public Prosecutions to investigate or prosecute any offence created by the Bill that imposes a sentence of five years or more.

Ironically these clauses are amongst the clearest in the Bill and could not be said to lack meaning or coherence or indeed be unconstitutional! In the absence of the President articulating his precise concerns with these sections one is left wondering whether the President would actually like these clauses to be further diluted or omitted entirely.

It is therefore far too early to welcome the President's announcement or to celebrate a small victory.

A complete re-conceptualisation of the Bill that legitimately protects state information in the national interest on the one hand whilst respecting the right of access to information and the right to expose corruption and maladministration on the other, is required.

Lawson Naidoo is Executive Secretary of Council for the Advancement of the South African Constitution (Casac)