The controversial Protection of Information Bill will go all the way to the Constitutional Court if President Jacob Zuma does not intervene and refuse to sign it into law.
This week political and civil society opponents of the Bill began considering political and legal challenges to stop the Bill becoming law.
This followed attempts by the ANC in Parliament to begin forcing through clauses of the Bill during deliberations by the ad hoc committee responsible for the legislation.
The DA, led by senior MP Dean Smuts, is considering a petition to Zuma asking him not to sign the Bill into law but instead to return it to Parliament on the grounds that it is unconstitutional. If this fails, the DA will seek support from one-third of the members of the National Assembly to have the Bill sent directly to the Constitutional Court for an order declaring parts of the Act unconstitutional, as provided for by section 80 of the Constitution.
Civil society, in the form of the Right2Know campaign, is discussing how best to mount a formal legal challenge to the proposed legislation.
“In the short term a political challenge is more likely, but legal or constitutional challenges are still very much on the table,” said national coordinator Murray Hunter.
In heated parliamentary proceedings this week, the ANC hardened its position on key aspects of the Bill. Most notably, it flatly refused to consider the inclusion of a public interest defence. The chairperson of the ad hoc committee, Cecil Burgess, summed up the ANC’s position on Tuesday, saying it was “digging its heels in” on a public interest defence because the party could find no example of international best practice for such a provision.
Later in the day, in what opposition MPs deemed a hostile move, the ANC initiated voting procedures during clause-by-clause deliberations. It voted successfully against a provision that aimed to harmonise the “Secrets Bill” with other legislation such as the Promotion of Access to Information Act.
The Bill, which is intended to create a new dispensation for the classification of state information, has been widely criticised for its extremely broad application. Alarm has also been expressed about the harsh punishments it proposes for those found in possession of classified information and the fact that no allowance is made for the release of classified information deemed to be in the public interest.
The ANC previously made concessions on the exclusion of the term “national interest” from the Bill, replacing it with “national security”. It also worked to align the Bill with the Promotion of Access to Information Act.
Hope
Hope had begun to grow among opposition members that the ANC was willing to reconsider the scope of the Bill after the party’s last submission, early in April. Its proposal on subclause 3 was a move to partly limit the Bill’s application to security services contemplated in chapter 11 of the Constitution, as well as to all organs of state.
Opponents of the Bill nevertheless deem the inclusion of “all organs of state” hopelessly broad, with Idasa estimating that the term could apply to more than 1 000 entities.
In its April position paper the ANC also proposed exemptions from the Bill through applications to the minister of security. However, the party also included a new definition of “national security”, which reintroduced vague and much disputed concepts such as “information peddling”.
Regardless of these proposals, the ANC veered from its own submissions on subclause 3 of the Bill during proceedings on Tuesday.
Burgess told the Mail & Guardian this decision was made because of criticism by the opposition that references to both the chapter 11 security services and organs of state were tautological and the party had simply moved to retain the reference to all organs of state.
He also argued that fears that the Bill was moving out of alignment with Promotion of Access to Information Act or other laws such as the Protected Disclosures Act, which is intended to protect whistle-blowers, were unfounded because the Bill retained numerous other references to these laws.
The meeting adjourned after the ANC agreed to formulate another document outlining its position. The reasons for the party’s about-turn remain unclear.
In a further meeting on Thursday, Burgess said: “As we go clause by clause, if we cannot achieve consensus on what is proposed, we will have to vote to get finality on that particular clause.”