The National Council of Provinces (NCOP) established a special ad hoc committee on Thursday to deal with the Protection of State Information Bill.
In terms of a motion adopted by the house, the committee will report to the council by April 8.
As was the case when a National Assembly ad hoc committee dealt with the Bill, the ANC will have a comfortable majority in the NCOP committee.
The ANC will have 10 members, the Democratic Alliance two, and the Congress of the People, Inkatha Freedom Party, and Independent Democrats one each.
The Bill was approved in the Assembly on Tuesday and was referred to the NCOP for concurrence.
The opposition parties are expected to attempt to have a public interest defence clause inserted into the Bill during the NCOP process.
Cosatu threatens ConCourt
Congress of SA Trade Unions will go to the Constitutional Court should attempts to amend the Protection of State Information Bill fail, its secretary general Zwelinzima Vavi said on Thursday.
Vavi said Cosatu would call for an urgent meeting with the ANC leadership to discuss the Bill.
The ANC had not responded to a letter raising Cosatu’s concerns about the Bill, he said.
“We will be asking President Jacob Zuma not to sign the Bill. We hope we can find one another, but if all fails we’ll go to the Constitutional Court,” Vavi told journalists in Johannesburg.
The scope of the revised Bill remained excessively wide, he said.
“It contains numerous provisions that undermine rights of access to information.
“Quite problematically, we note that its provisions state that it will trump the provisions of any other Act of Parliament that contradicts it,” he said.
Unauthorised people
The Bill also criminalised the possession of classified information by unauthorised people.
The ANC majority drove the contentious Bill through the National Assembly on Tuesday, despite vehement protests in and outside Parliament.
The Bill was adopted with 229 to 107 votes, and two abstentions, by the 400-member chamber.
There were 34 ANC MPs absent from the National Assembly during the vote.
The ANC said it was convinced that the Bill would play a constructive role in South Africa’s constitutional democracy.
However, Vavi said there was a need to introduce a public interest defence.
“Cosatu is concerned that relevant provisions in the Bill are capable of such broad interpretation that it would have the effect of imposing criminal responsibility on whistle-blowers who disclose information in the public interest,” he said.
Turning point
Meanwhile, Democratic Alliance leader Helen Zille committed her party on Thursday to fight the Bill on several fronts.
“Black Tuesday”, when the Bill was approved by the National Assembly, would one day be seen as a turning point in South Africa’s democracy, she told a media briefing at Parliament.
“Whatever happens in the months ahead, Tuesday will be remembered as the day that the ANC voted against media freedom — a cornerstone of our democracy.”
Some people had resigned themselves to a future under the Act, with the censorship implications thought to have died with apartheid.
“The DA has not given up. Far from it. We have fought against the Bill since its inception and we will keep on fighting.
“This legislation has no place in a free and democratic South Africa,” Zille said.
Among other things, she had asked Zuma for an urgent meeting to discuss the immediate as well as the far-reaching implications of the Bill for South Africa.
“News of the vote in the National Assembly has been covered worldwide. Human Rights Watch, for example, described it as ‘a blow to freedom of expression and democratic accountability’,” she said.
Currency markets
The response of the international currency markets was immediate. The rand slumped to a 30-month low, which analysts attributed to growing international reservations about South Africa’s future.
In the coming weeks, the DA would also launch an e-mobilisation campaign to increase pressure on the ANC to withdraw the Bill in its current form.
Lawyers had been instructed to look into the Bill’s validity.
The DA had argued from the outset that the Bill should not have been tagged by Parliament’s Joint Tagging Mechanism (JTM) as a section 75 Bill — defined in the Constitution as an ordinary Bill not affecting the provinces.
Instead, because the Bill had implications for provincial archives, which schedule five of the Constitution determined was an exclusive competency of provinces, it should have been tagged as a section 76 Bill — an ordinary Bill affecting the provinces.
“This is a crucial distinction, and could well be the Bill’s undoing,” Zille said.
Incorrect tagging of the Bill would render it unconstitutional, and therefore open to legal challenge.
The DA would also try to have the Bill amended as it passed through the National Council of Provinces process, and would petition Zuma in terms of section 79 of the Constitution.
This section allows Zuma to refer the Bill back to the Assembly if he has reservations about its constitutionality.
Section 80 petition
Zille said the DA would further lobby MPs from other parties to support a section 80 petition.
“The section 80 petition process is the final option, should all other avenues have been exhausted,” she said.
In terms of this section, MPs could apply to the Constitutional Court for an order declaring that all or part of an Act is unconstitutional.
The application had to be supported by at least one third of the members of the assembly, and be made within 30 days of the president assenting to and signing the Act.
“We believe that it is possible to acquire the 134 signatures needed to make an application to the Constitutional Court.”
Collectively, the combined opposition holds 136 seats in the House — two more than required to lodge a Constitutional Court application through the office of the Speaker.
The DA was prepared to use extra-parliamentary means to stop the Bill, as it currently stood, from becoming law, including the legal avenues at its disposal, Zille said. — Sapa
The passing of the Protection of State Information Bill came as no surprise, raising the threat to media freedom. View our special report.
