Zuma sends secrecy Bill back for fixing

President Jacob Zuma said the Bill as it stands would not pass constitutional muster as some sections were unconstitutional. (Gallo, The Times)

President Jacob Zuma said the Bill as it stands would not pass constitutional muster as some sections were unconstitutional. (Gallo, The Times)

President Jacob Zuma has rejected the controversial Protection of State Information Bill and referred it back to Parliament for reconsideration, granting some relief for journalists and whistle-blowers.

Speaking at a Parliamentary Press Gallery Association lunch on Thursday, Zuma said the Bill as it stands would not pass constitutional muster as some sections were unconstitutional.

He said he had given consideration to the Bill in its entirety and the various opinions and commentaries regarding the constitutionality and tagging of the Bill, popularly known as the secrecy Bill.

"After consideration of the Bill and having applied my mind thereto, I am of the view that the Bill as it stands does not pass constitutional muster," he said.

The Constitution requires the president to agree to and sign Bills referred to him by the National Assembly. In terms of section 79(1) of the Constitution, if the president has reservations about the constitutionality of a Bill, he may refer it back to the National Assembly.

"In this regard, I have referred the Bill to the National Assembly for reconsideration insofar as sections of the Bill, in particular sections 42 and 45, lack meaning and coherence, consequently are irrational and accordingly are unconstitutional," he said.

A significantly altered version of the Bill was passed by the National Assembly in April, but all the opposition parties objected to it and threatened to sue the state should Zuma sign it into law.

MPs fixing the Bill
Zuma told journalists on Thursday that he had decided against sending the Bill to the Constitutional Court because the court would not have fixed it.

When he looked over the Bill, Zuma said he "realised that some sections needed to be fixed. The Constitutional Court wouldn't have fixed it. It would be illogical to do so [send it to the Constitutional Court]. I decided to send it to the people [of Parliament] who could fix it," he said.

Zuma said he had written to Parliament, telling MPs to fix the Bill.

The Right2Know Campaign welcomed the news, saying it was an important victory for access to information and for mobilised citizenry.

"But now the onus is on Parliament to really work the Bill over and address the wide-ranging concerns that the public has raised," said Right2Know national co-ordinator Murray Hunter.

Section 42 of the Bill criminalises the abuse of the classification of information to conceal breaches of the law. Section 45 deals with the authority of the national director of public prosecutions when it comes to instituting criminal proceedings.

Unconstitutional sections
The clause proposes that: "No prosecution or preparatory examination in respect of any offence under this Act, which carries a penalty of imprisonment of five years or more, may be instituted without the written authority of the national director of public prosecutions."

Though he said these sections were unconstitutional, Zuma would not elaborate on what exactly was unconstitutional about them.

There was, however, some confusion among journalists who covered the Bill's processing in both the National Assembly and the National Council of Provinces because the final version that was passed by Parliament seemed different to the presidency's version.

In that version, passed by the National Assembly, section 42 deals with the failure to report possession of classified information, proposing that a person may go to jail for up to five years if they do not comply with the proposal that if they came across classified information they should hand it over to the authorities.

Section 45 in that version speaks to improper classification whereas the Bill proposes that an official who wrongly classifies information to hide wrongdoing should be jailed.

Section 48 of the Bill deals with the director of public prosecutions.

Parliament said the whips of political parties are consulting on the establishment of an ad-hoc committee to consider Zuma's reservations.

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