The secrecy Bill will be challenged in the Constitutional Court if the National Council of Provinces and President Zuma fail to fix the legislation.
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 on Tuesday 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.
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.”
Not the end of the road
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 at 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.
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,” he said.
This would involve going to the Constitutional Court and arguing that the Bill does not accord with basic constitutional principles.
Penalties for whistleblowers
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.
“The Bill provides that any person who unlawfully and intentionally discloses classified information in contravention of the Act is guilty of an offence, except where such disclosure is protected under the Protected Disclosures Act of 2000.”
The Protected Disclosures Act, commonly referred to as the “Whistleblowers Act”, sets out detailed procedures and steps that whistleblowers must follow when disclosing unlawful activities, incompetence or corruption in organs of state.
“The Bill does not interfere with these rights of whistleblowers,” he said.
On Tuesday evening, former Constitutional Court judge Kate O’Regan said all enacted legislation must comply with three constitutional restraints: compliance with legality, rationality and the Bill of Rights.
South Africans have the right to bring the secrecy Bill before the Constitutional Court if they feel it is impinging on their rights, she said at the annual Helen Suzman memorial lecture in Johannesburg.
O’Regan said she would not comment on whether the information Bill could be regarded as unconstitutional, as she had not read it, but 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, spokesperson 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.
But McKinley said “the battle is not over”.
“The ANC is going to find out that you cannot constrain information. You cannot suppress the truth,” he said.
The passing of the Protection of State Information Bill came as no surprise, raising the threat to media freedom. View our special report.