Parliament has referred the contentious Bill back to the National Assembly’s ad hoc committee, which originally considered the Bill and completed its work on the controversial proposed law in November 2011.
On Tuesday, ANC chief whip Mathole Motshekga tabled a motion to re-establish the National Assembly committee that worked on the Bill before it was passed by the House in 2011. The committee has been given until June 20 to finish its work.
The Bill, known informally as the secrecy 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.
It was passed subject to amendments by the National Council of Provinces (NCOP) in November last year.
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.
Constitutionality
Trade union federation Cosatu, the Democratic Alliance and the Right2Know campaign have all threatened to approach the Constitutional Court to rule on the constitutionality of the Bill.
DA parliamentary leader Lindiwe Mazibuko said her party will push hard for these changes to be made when the Bill returns to the National Assembly.
She said the DA would lobby ANC MPs across the floor and urge them to make the necessary changes to ensure that Parliament is not undermined by passing unconstitutional legislation.
“It is in these important negotiations that Cosatu must end its hypocrisy and instruct MPs aligned to it in Parliament to assist us in making these vital changes.
“If this does not happen and all mechanisms available to us in Parliament have been exhausted, the DA will petition the president under section 79 of the Constitution to refer the Bill – after it is passed in the National Assembly – to the Constitutional Court for reconsideration of its constitutionality,” said Mazibuko.
She said, should President Jacob Zuma abdicate his constitutional responsibilities and sign this "problematic” Bill into law, the DA will, through the Multi-Party Forum, lobby MPs from other parties to join its petition to refer the law directly to the Constitutional Court as provided for in section 80 of the Constitution.
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 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. The Bill has changed dramatically since the National Assembly passed it in November 2011.
Controversial clauses
DA MP Dene Smuts, who is a member of the National Assembly committee, told the Mail & Guardian that she expects the committee to only deal with the NCOP proposals and no further consideration of the Bill.
State Security Minister Siyabonga Cwele appeared before the NCOP committee in October 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 its ad-hoc committee, when it 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.
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.
Cecil Burgess, who chairs the National Assembly ad hoc committee, said that his committee will only deal with the amendments by the NCOP committee and there will be no further changes to the Bill.
“We will either accept all the amendments [from the NCOP] or some of them or none of them,” said Burgess.
He said there will be no further public hearings on the Bill.
He said the four-month period given by Parliament to finish the work could be because of a “busy parliamentary period” and has no reflection on the work they are expected to do on the Bill.