/ 12 December 2012

How the NCOP struck a (minor) blow for democracy

By resisting pressure from the department of state security and introducing amendments
By resisting pressure from the department of state security and introducing amendments

As the Protection of State Information Bill moved a step closer to the statute book law last month, with most National Council of Provinces' (NCOP) members voting for it, activists and commentators across the country mourned democracy's "little death".

Their angst stemmed from a number of problems identified with the Bill that have not been fixed, despite intense civil society pressure on the law-makers.

Significant among the Bill's deficiencies is the threat of up to 25 years' imprisonment faced by whistleblowers and journalists prosecuted under its espionage provisions. The Bill's chilling effect on the free flow of information will entrench a culture of secrecy that many commentators believe will pose a threat to South Africa's democracy.

One positive aspect has been the extensive public participation in the law-making process, which has been overlooked amid the passionate discourse surrounding the Bill.

After the Bill was passed by the National Assembly, it was widely expected that the NCOP, often seen as a rubber stamp for legislation, would pass the Bill with only token amendments.

However, after numerous requests for deadlines to be extended over an 11-month period, the parliamentary ad hoc committee hosted public hearings in all nine provinces, including rural areas; held 40 committee meetings; and invited oral and written submissionsfrom across civil society, and from trade unions and Chapter 9 institutions.

Following its engagement with the public feedback and persistent petitioning by the Right2Know campaign, the committee proposed close to 800 amendments to the legislation.

Many of these were minor and technical, but others were significant.

Major amendments included:

• A limited publicinterest defence, provided for simple disclosure;

• The reinstatement of the supremacy of the Promotion of Access to Information Act over the Secrecy Bill;

• The removal of minimum sentences in all except the espionage provisions of the Bill; and

• The removal of special prohibitions against the disclosure of information relating to the State Security Agency.

The committee has also tried to limit the Minister of State Security's broad authority to classify by subjecting classification decisions to some parliamentary oversight.

The amendments went some way towards meeting the public's demands. They highlighted the messiness of the law-making process, as well as fundamental differences of opinion about the public's right of access to state information.

This played itself out in the overtly partisan approach of some state officials during the public deliberations on the Bill.

The low point in the legislative process was the inaccurate and deceitful advertisements commissioned by the Government Communication and Information System – at a cost of more than R1-million to the taxpayer.

A further concern, pointed out by the Right2Know Campaign, was that ANC branch members may have been bussed in to hearings at town halls to support the Bill.

The often hostile treatment of civil society by members of the NCOP also dampened the potential for robust engagement.

In post-apartheid South Africa's most significant clarion call for public participation in law-making, former Chief Justice Ngcobo noted in the majority judgement in Doctors for Life vs Speaker of the National Assembly that "a majority of [our] people had, for many years, been denied the right to influence those who ruled over them. They had been discriminated against in almost every sphere of life

"Merely to allow public participation in the law-making process in the prevailing circumstances is therefore not enough. Public involvement in the legislative process requires access to information and the facilitation of learning and understanding in order to achieve meaningful involvement by ordinary citizens."

The machinery of democracy is oiled by the slogans and petitions of civil society.  Although the amendments introduced by the NCOP do not adequately remedy the Bill's constitutional shortcomings, the  democratic process which led to them is a testament to civil society's commitment to the right to know.

By resisting pressure from the department of state security and introducing these amendments, the NCOP went some distance towards meeting Ngcobo's test of public participation. In so doing, it struck a blow for democracy.

Vinayak Bhardwaj is advocacy coordinator of the M&G Centre for Investigative Journalism (amaBhungane)

insert amaB logo please