The Protection of State Information Bill will be challenged in the Constitutional Court if the National Council of Provinces (NCOP) and President Jacob Zuma fail to add a public interest defence clause, activists and journalists say.
The National Assembly passed the secrecy Bill yesterday with 229 votes in favour. There were 107 votes against the Bill and two abstentions. The Bill was adopted by majority vote after the Democratic Alliance called for the Bill to be postponed. Opposition parties present voted against the measure, while hundreds of black-clad activists protested against it outside the gates of Parliament and elsewhere in the country. Editors who attended the parliamentary session staged a walk-out after the Bill was voted in,the Mail & Guardian and South African Press Association reports.
The ruling African National Congress (ANC), which had instructed its full parliamentary caucus to be present for the vote, hailed the passage of the Bill it insisted was not aimed at gagging the media.
Moloto Mothapo, of the office of the ANC Chief Whip said the Bill was aimed at protecting the national security of the country. “It is firmly in line with best international practice as states have constitutional obligations to protect their people and territorial integrity,” he said.
The vote in Parliament was “not the end of the road” for the secrecy Bill, however, said Mail & Guardian editor-in-chief Nic Dawes, as the Bill could still be fixed in the NCOP. “So many South Africans made it clear that the Bill is a danger to democracy and it wouldn’t have been that difficult to make some final changes to it. Instead we’re left with a flawed and dangerous legislation,” he said.
The Bill gives the state broad-sweeping rights to classify information it deems as sensitive or secret and there is no provision to allow whistleblowers to leak information that may be in the public interest without facing legal censure. The Bill sets out harsh penalties of up to 25 years in jail for whistleblowers. But the ANC’s Mothapo said the rights of whistleblowers were not prejudiced by the Bill in any manner.
Should the NCOP fail to order a public interest clause to be introduced into the proposed legislation, “it can still be sent back to Parliament by President Jacob Zuma. And if that doesn’t happen we can still take the legal route in order to get the Bill struck down,” Dawes said. This would involve going to the Constitutional Court and arguing that the Bill does not accord with basic constitutional principles.
Meanwhile, the Helen Suzman Foundation said the Bill would undermine the constitutional democracy of the country. “The Bill cannot credibly be described as in South Africa’s best interests,” it said in a statement on Monday. “Instead it is a case of political expediency triumphing over constitutional rights. It marks the beginning of policy being driven by a secretive and self-serving security cluster.”
Dale McKinley, spokesman for the Right2Know campaign, a coalition of civil society organisations that has widely campaigned against the Bill, said the ANC had “run roughshod” over the concerns of the public. “The ANC is moving further and further away from being a party that listens to its constituents,” he said, pointing out that public consultations on the Bill had not been held. “In doing so they have betrayed the principles of open government and transparency that the ANC once stood for.”
The SA Human Rights Commission (SAHRC) said the bill could impact negatively on basic human rights. The commission, a body created by Chapter Nine of the 1996 constitution, said the Bill had to be aligned with the Promotion of Access to Information Act, to avoid moving back towards a culture of secrecy which had the potential to undermine democracy. The commission also expressed its concern about the impact of the Bill on the rights of journalists and whistleblowers who released information in the public interest and faced the prospect of lengthy imprisonment sentences in the absence of a public interest defence in the Bill.
Media Monitoring Africa (MMA) noted with “deep regret” the Assembly’s decision. “We call on President [Jacob] Zuma and the African National Congress to follow through on their pledge of a fully public and consultative process on this Bill.” A side effect of the Bill was that it had seen a trend of national, provincial and local institutions tending towards a culture of secrecy, it said.
The Bill has attracted a lot of opposition from the media who have expressed concern that it would impinge on their freedom of expression and make it more difficult to access information which would be of public interest. A large number of journalists and activists clad in black in what has been called “black Tuesday” witnessed the proceedings from the public gallery and walked out en mass when the Bill was passed to show their displeasure.
The South African National Editors’ Forum (SANEF) will engage with government over the Bill, the group says. “We will also engage with ANC and government leadership on this matter with the objective of finding a solution that builds and supports South Africa’s constitutional democracy,” SANEF said after the National Assembly passed the Bill. SANEF added it would continue to work with fraternal organisations and civil society formations to stop the Bill. It also said it was saddened by the decision of MPs who voted in favour of the Bill. “South Africans from all sectors of society have made it clear that they believe the bill is a danger to democracy, and a threat to their rights. We had hoped MPs would hear the clamour at the gates of the legislature, but they chose to stop their ears,” it added.