ConCourt action will be secrecy Bill activists’ last resort

A Constitutional Court challenge is now all that stands in the way of the secrecy Bill being enacted into law, after the controversial piece of legislation was pushed through the National Council of Provinces (NCOP) on Tuesday.

This is the inevitable truth that faces activists and opposition parties, who have rallied against the contentious legislation, which is now set to return to Parliament in 2013.

The ANC used its NCOP majority to force the secrecy Bill through the council's special ad hoc committee, raising the ire of opposition politicians.

Opposition parties were given just 10 minutes to study a 22-page report on the deliberations of the committee and the amendments that were agreed for the Protection of State Information Bill – also known as the secrecy Bill.

They then staged a walk-out, allowing the ruling party to approve the report and vote in favour of the Bill being debated this Thursday in a plenary session of the council.

In a statement released on Tuesday, committee chairperson Raseriti Tau said that the committee had done everything it could to ensure that it produced "a constitutionally sound piece of legislation that is informed by the views of our people and bears resonance to the principles of our democracy".

"We truly believe that we succeeded in this regard," he said.

Tau dismissed what he called "disproportionate misinformation paddled on public platforms" and the "mischievous political deportment" of those who want to "push newspapers' headlines and project themselves and whatever grouping they represent, as the champions of democracy".

The public participation process run by the NCOP, to allow the public to make inputs into the Bill, was heavily criticised by organisations such as the Right2Know (R2K) Campaign, which highlighted misinformation, bias and inadequate access to and participation by the public in the hearings.

Once the Bill is approved by the NCOP it will return to the National Assembly for the amendments to be validated. It will then be presented to President Jacob Zuma to be signed into law.

As Parliament will adjourn for recess on December 7, it is likely this will happen early next year.

But the Bill could still be challenged in the Constitutional Court, either by members of the public or by members of Parliament who are opposed to the Bill.

Members of the public must follow the legal route to ask for a Constitutional Court review of the Bill. This process could be both time consuming and expensive.

Meanwhile, MPs who wish to refer the Bill to the Constitutional Court must garner the support of at least 30% of the MPs in Parliament.

This means that 120 of the 400 MPs would need to support the move. The ANC, which has backed the Bill since its inception, holds 264 seats in Parliament. Although ANC MPs could vote against the Bill, it seems unlikely that this would happen. The last time the house voted on the secrecy Bill, two ANC MPs – Ben Turok and Gloria Bornam – abstained from the vote. They were later subjected to a disciplinary hearing for failing to toe the party line.

The margins needed would require most of the opposition MPs to oppose the Bill. Alf Lees, DA representative on the ad hoc committee that has been dealing with the Bill at the NCOP, said this would not be an obstacle.

"This Bill is so contentious, so we're fairly confident we could get [the 30%]," said Lees.

Lees said that opposition parties still had "enormous problems with the Bill" and that if the National Assembly were to approve the Bill, opposition parties would "immediately start that petition".

"We’re already doing the groundwork," he said.

The Bill proposes harsh penalties for journalists and citizens found to be in possession of classified documents as well as harbouring state secrets.

It is unclear at this stage if there will be an independent appeals mechanism available to citizens who wish to access information that may have been classified as secret without justification.

Though there is a provision for a mostly independent body to review decisions, citizens do not have access directly to it.

The Bill has been widely condemned by civil society and advocates of transparency. Just this month, former intelligence minister Ronnie Kasrils called the Bill a "dog's breakfast".

Murray Hunter of the R2K said court action at this stage seems inevitable.

"From the very beginning we've campaigned to have our concerns with the Bill addressed in Parliament, and would certainly want to avoid a court battle if we could," Hunter told the Mail & Guardian.

"But if the Bill were to pass into law in its current form, we'd be willing to take it all the way to Constitution Hill."

Glenda Daniels, senior researcher at Wits Journalism and author of Fight for Democracy: The ANC and the Media in South Africa, said the Bill had been flawed from the start.

"It should really be completely scrapped and they should start from the [beginning], to look at what the issue – what national security – is. If they can define properly what national security is, the rest will follow," she said.

Daniels added that this was the only way the Bill would have any integrity. "Obviously this is not going to stand constitutional muster. It’s going to go to the Constitutional Court," she said.

"I have absolutely no doubt that we will win this. [The Bill] is absolutely in opposition to the free flow of information."

Jonathan Klaaren, professor of law at the University of the Witwatersrand, said it is clear the Bill will go to the Constitutional Court.

"I’m 100% certain this is going to end up in front of the Constitutional Court, even if the Bill was to be changed dramatically," said Klaaren.

"The question is if it will be referred there [by Parliament] or if it will be taken there by litigants." 

He said that because the Bill had been so contested – and was so contestable – it would be a good idea, for its effectiveness, to have Constitutional Court authority and vetting behind it.

This may represent a move in politics to bring the Constitutional Court more into play as a political actor in considering contested legislation, he said, pointing out that in some countries, a Constitutional Court review is part of the legislative process.

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