The decision by ANC MPs, no doubt firmly prodded by Luthuli House and the state security apparatus, to force through Parliament draconian, anti-democratic secrecy laws marks a striking retreat from South Africa’s post-1994 legislative tradition.
Parliament has produced an extraordinary volume of new legislation in the past 17 years as a succession of democratic parliaments has swept away the apartheid legacy and built a modern, progressive legal framework. Despite the overwhelming dominance of the ANC and some pretty terrible draft Bills that had strong backing from the majority party when first introduced, very few truly dangerous or flawed laws have made it on to the statue books.
The dissolution of the Scorpions, now reversed by the Constitutional Court, is the exception that proves the rule, but the governing party could have used its large majority far more crudely than it has.
There are various reasons for this. One is that there is a genuine willingness to learn from the parliamentary process and to correct errors and unforeseen consequences introduced in drafting. Another is that the top ANC leadership is responsive to pressure from key stakeholders — albeit not often from opposition parties.
That is why Thabo Mbeki withdrew controversial proposals to restructure the judiciary in 2005 and why the new Companies Act, a well-intentioned but poorly written overhaul, could be so thoroughly tidied up before its final introduction. This law-making process, often noisy and messy, but ultimately productive, is a too-little celebrated success. So why is it being ignored in the rush to pass the Protection of Information Bill?
ANC members of the ad hoc committee on the Bill, led by chairperson Cecil Burgess and his right-hand-man Lluwellyn Landers, have now made it clear that no further debate is to be brooked. They will vote clause by clause and the most pernicious features of the government’s original draft will pass through to the National Assembly and on to President Jacob Zuma’s desk.
The broad remit of the proposed law, which covers state institutions ranging from the Johannesburg Zoo to the National Intelligence Agency remains intact. So does the criminalisation of whistle-blowing and the publication of leaked documents, not to mention measures that force unprecedented secrecy on our courts.
Why isn’t the ANC listening? It may be that there is no natural constituency for freedom of information, or rather that that constituency fails truly to grasp the urgency of the issue. Cosatu and its affiliates threaten to strike for wages, or against the Municipal Systems Bill, but they offer only token resistance to this assault on workers’ interests. The best business can manage is an occasional word of criticism. Neither cares enough to spend political capital.
That leaves the media and the Right2Know coalition with plenty of activist vigour and precious few big levers left to pull.
The Constitutional Court may yet shoot down the legislation, but it is time we stopped entrusting all the most crucial battles to the courts. We need you, on the streets, in the boardrooms and in the backrooms, making some noise. It is not too late to stop the “Secrecy Bill”.