Activists vow to oppose Secrecy Bill in court
The National Council of Provinces gave its stamp of approval to the Protection of State Information Bill when it adopted the final draft of the proposed law on Thursday.
The Bill, known informally as the secrecy Bill, will head back to the National Assembly, which is the higher house of Parliament, for further consideration. It has changed dramatically since the National Assembly passed it amid protests in November 2011.
The National Assembly can either accept the changes made by the council's ad-hoc committee or reject them. If it accepts them, it will pass the Bill and send it to President Jacob Zuma to sign into law. If it rejects the amendments or wants further changes, it will have to re-establish an ad-hoc committee for another look.
Only a month ago, State Security Minister Siyabonga Cwele appeared before the National Council of Provinces committee and proposed that some of the controversial clauses the committee had dropped, in trying to meet the demands of the media and civil society, be retained.
Cwele is a member of the National Assembly and had the sympathy of the Assembly's ad-hoc committee, which previously worked on the Bill.
He called on MPs to reintroduce a five-year prison term for disclosing classified information as well as clause 1(4), which would make the new "official secrets" legislation trump the constitutionally mandated Promotion of Access to Information Act.
Earlier, the ANC had agreed to scrap clause 1(4) after rights groups and legal experts warned that it was potentially unconstitutional because it sought to limit the right to state information guaranteed under the Promotion of Access to Information Act.
Cwele also urged MPs to lower the threshold of proof imposed by the Bill, arguing that the latest draft would make successful prosecution for revealing state secrets near impossible. He also objected to a subclause that sought to widen protection for whistleblowers.
A source close to the National Council of Provinces committee claimed that it was unlikely that the National Assembly would reject the council's amendments. "We presented to the [ANC NEC] and to the study group [on the Bill] to explain why we were making the changes, and we had their approval on each amendment," said the source.
Either way, a Constitutional Court battle looks inevitable. The Right2Know campaign said this week, if Parliament fails to introduce the "necessary" amendments and President Jacob Zuma signs the Bill into law, they will take the fight to the Constitutional Court.
The campaign said that the Bill still fails the "Right2Know seven-point freedom test" on all counts.
"The Bill still carries the fingerprints of the securocrats who have remained the 'hidden hand' behind this process from the start. The finalised version criminalises the public for possessing information that has already been leaked, protects apartheid-era secrets, and still contains broad definitions of national security that will in all likelihood be used to suppress legitimate disclosures in the public interest.
"In short, the secrecy Bill remains a clear threat to South Africa's right to know."