Civil society and opposition groups cling to the hope that the controversial Protection of State Information Bill will go to the Constitutional Court.
The Protection of State Information Bill, or secrecy Bill, has been passed by the National Assembly. All that remains is for President Jacob Zuma to sign it for the Bill to officially become law.
But opponents of the Bill now hope Zuma will make use of Section 79 of the Constitution, which allows the president to send a Bill, including this one, back to the National Assembly for further deliberations, and then to the Constitutional Court for an opinion on the Bill's constitutionality.
This would allow the president to ensure the Bill is fully constitutional before he signs it into law. On Thursday, the presidency declined to comment on whether or not Zuma would do this.
But the Bill is probably heading for a Constitutional Court review regardless of the president's decision. This due to several concerns raised by opposition parties and civil society groups, despite two years worth of wrestling over the Bill's various provisions at Parliament.
If the court justices were to decide that the Bill is constitutional, Zuma would then be compelled to sign it. It is a decision that civil society and opposition parties think would be unlikely.
The Bill seeks to regulate the classification of state information but has come under unprecedented opposition from the media, civil society, and opposition parties for provisions that undermine the right to access information and the rights of whistleblowers and journalists.
Its critics claim that the Bill is unconstitutional as it lacks a public interest defence clause to protect those who publish information which they deem to be in the public interest.
They also call for a strengthened public interest override, a limited definition of national security, a review of sections pertaining to almost all offence and the removal of provincial archives.
Right To Know
The Right2Know Campaign, a civil society coalition made of over 400 organisations, said in a statement that the Bill still allows for those seeking to reveal information about corruption or ineptitude in the public interest to be prosecuted.
"People can be charged with 'espionage', 'receiving state information unlawfully' [to benefit a foreign state], and 'hostile activity' without proof that the accused intended to benefit a foreign state or hostile group or prejudice the national security; only that the accused knew this would be a 'direct or indirect' result.
"While the Bill limits the number of agencies and people that can classify information, it still gives powers to the minister of state security to give classification powers to other state bodies [and junior officials] without adequate public consultation.
"The secrecy Bill still lacks of a public domain defence, effectively criminalising the population at large when classified information becomes public, rather than holding those responsible for keeping secrets accountable.
"The Bill still contains draconian sentences of up to 25 years in jail," the Right2Know campaign said.
Murray Hunter, Right2Know's national coordinator, said parliamentarians had done all they could to improve the Bill. However, this was not enough, and the courts should now decide on the Bill's constitutionality.
Changes not good enough
The South African National Editor's Forum (Sanef) and Print and Digital Media South Africa, agreed. Sanef said that while major changes to the Bill were an improvement, these did not go far enough.
"Those changes have improved the proposed legislation in important ways, but they do not go far enough. The Bill still has the potential to be used as an instrument of secrecy in a democracy that can only thrive in a climate of openness.
"If, as expected, the National Assembly passes the legislation in its current form, President Jacob Zuma has the option to refer it to the Constitutional Court. That is an opportunity he must avail himself of. Members of Parliament, too, can send the legislation for constitutional review before it becomes law.
"We have already seen how a process of public engagement has improved the Bill. A full review by the highest court in the land would significantly advance that process, and help to ensure that remaining concerns about its constitutionality are fully addressed," Sanef said.
Nic Dawes, Sanef's chairperson, said media representatives were ready to take the matter to court.
"If the president refers the bill back to the National Assembly, we will support that process and object to the remaining problematic areas. If he does not, Sanef, with Print and Digital Media South Africa, will make a high court application to have the Bill reviewed on constitutional grounds," Dawes said.
During the debate on the Bill in the National Assembly on Thursday, Democratic Alliance parliamentary leader Lindiwe Mazibuko said the party would petition Zuma to send the Bill back to the National Assembly in terms of section 79 of the Constitution.
Mazibuko said the Bill would not pass constitutional muster because it allows for a blurring of lines between the powers of national and provincial government to classify information.
"The fact remains that this Bill is still flawed because Parliament does not have the power to legislate on matters which are exclusive provincial competences. From the beginning, the Bill ought to have been tagged as a section 76 Bill to allow for proper provincial scrutiny.
"Honourable members will know that the Constitutional Court has in the past declared Acts of Parliament 'null and void' because they were not correctly processed as Section 76 Bills. This is exactly what happened with the passage of Clara, the Communal Land Rights Act. In our view, this Bill equally does not pass constitutional muster," Mazibuko said.
The ANC, however, welcomed the passing of the Bill. A spokesperson for the office of the ANC chief whip, Molotho Mothapo said the party remained "unshaken" in its conviction that the Bill was constitutional.
"The office of the ANC chief whip welcomes the passing of the Protection of State Information Bill by the National Assembly today. The Bill will now be sent to the president to be signed into an Act of Parliament.
"The passing of this Bill today is a culmination of over five years of work by the two Houses of Parliament. Extensive public consultation with a wide range of representatives of our society, public debates and robust engagements amongst political parties have taken place on this Bill since it was first tabled in Parliament in 2008."
The ANC's votes in the National Assembly yesterday included that of MP Ben Turok, who abstained from voting, for it during the first round of voting in 2010.
In a statement on Wednesday, Turok said he had previously considered the Bill to be "obnoxious". But he had been informed that the changes to the Bill were "substantial", he said, adding that the parliamentary processes had now run its course.
"A protest is just that, it is not more than that. An individual action has limited effect," he said. He added that he was not satisfied that the Bill will land up in the Constitutional Court.
"It is clear that the Parliamentary process has run its full course and that the relevant committees are exhausted. I therefore feel it is time for others to take up the debate, and rely on the good judgment of our top lawyers to decide," he said.