Public Protector Thuli Madonsela on Friday refuted claims by the ANC that she had threatened to investigate the Protection of State Information Bill.
However, she confirmed that she had serious reservations about the draft law that critics across the political spectrum have vowed to challenge in the Constitutional Court if passed in its current form.
Madonsela made public a letter she sent to National Assembly speaker Max Sisulu last month, stating she had received numerous requests to probe the draft law but did not believe it was within the mandate of her office to do so.
Citing the section of the Constitution setting out her mandate, she concluded: “The general understanding by international good practice is that this mandate does not extend to legislative acts of Parliament.
“I have accordingly exercised my discretion not to investigate this matter.”
Meddling
This comes after ANC chief whip Mathole Motshekga accused Madonsela, supposedly on the basis of news reports, of meddling in the legislative process.
“If media reports are correct then the public protector appears to interfere in Parliament’s legislative process by questioning and threatening to investigate the institution’s legislative decisions,” Motshekga said.
“The action of the Public Protector worryingly implies that Parliament is accountable to the office of the public protector, when in fact the opposite is true in terms of the Constitution.”
Motshekga went on to criticise Madonsela for writing to Sisulu to express concern about the Bill.
He said as a Chapter 9 institution, the office of the public protector had the right to make submissions on draft legislation before Parliament but not to question Parliament’s legislative decisions.
Bizarre
“Writing to the speaker expressing concern on the legislative process or decision is bizarre,” he said.
In her four-page letter Madonsela said she believed it correct to alert Sisulu and Parliament to the complaints she had received on the Bill, which is meant to repeal apartheid era secrecy legislation but has sparked a sustained public outcry.
“I have considered it proper to alert you and Parliament to the concerns that have been raised with me and the possible constitutional challenge to the final product should it remain the same as the version currently before Parliament.”
Madonsela said the central concern expressed by those who wrote to her was the absence of a public interest defence for those accused, under pain of prison, of contravening the new law.
She could not see what harm such a defence would do and believed that “the courts would as customary elsewhere in the world deal with this defence with circumspection”.
The ANC insists that the inclusion of such a clause would undermine the whole Bill, and that furthermore, it went against international best practice. This point is strongly disputed by legal experts.
‘Informed choices’
Madonsela added that she was concerned that if it became law, the Bill would hinder the work of her office.
“The functioning of the public protector may be affected by the Bill to the extent that my office has to rely extensively on the media and whistleblowers to report issues [of] suspected maladministration, including various forms of service failure, abuse of power, abuse of public resources and fraud and corruption within organs of state.”
She also warned that government information was a “national resource” and free access to it was necessary for the exercise of individual rights and the well-being of society.
“Without information, people cannot adequately exercise their rights and responsibilities as citizens or make informed choices.
“In the context of good governance and sound public administration the availability of information enhances the accountability of government,” she said.
Motshekga said the appropriate platform for Madonsela to raise her concerns would be in a submission to the ad hoc committee of the National Council of Provinces, established to see the Bill through the second house of Parliament after it was passed by the National Assembly last month. — Sapa
The passing of the Protection of State Information Bill came as no surprise, raising the threat to media freedom. View our special report.
