Politics is the art of the POSI Bill
The President's announcement last Thursday, that he had decided to refer the controversial Protection of State Information Bill back to Parliament to remedy constitutional defects, was greeted with relief, surprise and celebration by many quarters of civil society. A closer look at the fine print, however, reveals that the champagne should remain firmly corked for the foreseeable future.
The Bill has been the focus of unprecedented public outcry, particularly by members of the press, who by and large perceive the Bill as a threat to their right and responsibility to scrutinise and report on the exercise of public power and expenditure from the public purse. The President's announcement on Thursday does little to allay these concerns.
On the contrary, on the very same day, the President issued another statement about "balancing the role of media products as business enterprises that need to make a profit and the public's right to know. The President's view is that the profit motive influences content as media products need to sell in order to make money and warned journalists of the future to be mindful of this imperative against their role of informing the South African public in a balanced and truthful manner."
More importantly, in referring the Bill back to Parliament, the President seems to have expressed no reservations about its substance, not even about its shadowy definition of "national security", which is so central to the controversy surrounding the Bill. While the precise scope of the President's reservations would be set out in his letter to Parliament, which has not yet been made public, it appears from both the President's and Parliament's press statements that he has concerns only "insofar as sections of the Bill, in particular Sections 42 and 45, lack meaning and coherence, consequently are irrational and accordingly are unconstitutional."
The sections identified are indeed defective in the way the President anticipates. Section 45, which criminalises intentional improper classification of information by state officials, is grammatically faulty, though its intended meaning is quite clear. Section 42, read literally, criminalises (by cross-reference to section 15) an official's failure to declassify information after 20 years, punishable by up to five years' imprisonment. The title of the section, however, plainly states that its intended target is the failure of members of the public (including the press) to report and return to the state any classified records in their possession (section 13).
Parliament is obliged, by law and by its own rules, to confine its review to the reservations conveyed by the President. Thus, if the press statements accurately articulate the contents of the President's letter, then Parliament's revision of the Bill need not - and cannot - extend any further than the replacement of a full stop with a colon or comma in section 45, and the alteration of a 5 to a 3 within section 42.
It is hardly surprising, therefore, that the authors of the Bill, the Ministry of State Security, immediately welcomed the President's decision, as it "will allow Parliament to give effect to the areas of concern pertaining mainly to typographical errors that affect the meaning and rationality of the Bill. The significance of the errors in respect to section 42 and 45 are material in the implementation of this piece of legislation and as such, it is important to allow the legislature to attend to same."
Despite the passage of far more grievous grammatical transgressions into the statute book, this President has never before, nor has any President prior to him, referred a Bill back to Parliament for technical correction. It thus seems unlikely that this referral results from any regular practice in the Presidency of running a fine editorial toothcomb over Parliament's work.
If indeed the President's letter restricts Parliament to typographical revision of the Bill, the referral may seem somewhat disingenuous and perhaps even contemptuous of the concerns sustained over several years by a considerable cross-section of the public. This is particularly so considering that the state, including principally the President himself, is still embroiled in a swirl of scandals concerning, precisely, the exertion of state secrecy over public expenditure, and the sweeping invocation of "national security" to justify it.
Therefore, the President's decision may prove to be an exercise not in constitutional stewardship or statesmanship but in political tact, designed perhaps to maximise political reward while minimising political risk. After all, as the renowned German strategist Otto von Bismarck famously said, "politics is the art of the possible, the attainable - the art of the next best".
Given the technical character of the defects apparently identified by the President, and the ease with which they can be corrected, it seems unlikely that the President will need to refer his reservations to the Constitutional Court when the Bill lands back on his desk. Even if he does, however, the superficial scope of his reservations could preclude the Court from making any meaningful pronouncement on the constitutionality of the substance of the Bill.
The first and last time this special power was invoked - in 1999 by President Mandela - the Constitutional Court (unanimously through then Acting Justice Cameron) commented that "the Court considers only the President's reservations. Whether it may ever be appropriate for the Court upon a presidential referral to consider other provisions which are manifestly unconstitutional, but which are not included in the President's reservations, need not be decided now."
Perhaps the Court will soon be called upon to revisit these words and make a vital intervention in the controversy over state secrecy. While one cannot predict what the Court would say, the nation stands only to benefit from the light the Court might cast on the shady areas of the Bill. Perhaps, though, we will never know.
Ben Winks is a candidate attorney at Webber Wentzel and a visiting researcher at the University of Johannesburg.