The Protection of State Information Bill is back in Parliament after two presidents refused to sign it into law, and now the Justice and Constitutional Development Portfolio Committee will decide at a meeting to be convened what should happen to its future.
Image: Tracey Adams / Independent Newspapers
The fate of the controversial so-called Secrecy Bill hangs in the balance as South Africa’s Justice and Constitutional Development Portfolio Committee prepares to deliberate on President Cyril Ramaphosa’s constitutional concerns regarding the legislation.
Initially introduced in 2010 and revived last year after being dormant for years, the Protection of State Information Bill has sparked contention among lawmakers and civil rights advocates.
After Ramaphosa returned the Bill to Parliament for reconsideration, the parliamentary legal services said in its legal opinion that it agreed with Ramaphosa that there was merit in most of his reservations on the constitutionality of the Bill.
“These address crucial issues of ambiguity (which could result in abuse of power), unreasonable infringements of rights, and applications that could undermine the principle of legality.
“Our only point of disagreement in its current form is on the issue of tagging. We are of the opinion that the Bill was correctly tagged, but if further amendments are made (in addressing the President’s concerns), this could result in a change in tagging,” said the legal opinion.
The Bill, originally handled by an ad hoc committee, was introduced in 2010 and lapsed before the last parliamentary term ended before last year’s elections, only to be revived and reassigned to the portfolio committee in August 2024.
Former president Jacob Zuma and Ramaphosa sent it back to Parliament for reconsideration of constitutional concerns in 2013 and 2020, respectively.
The parliamentary legal services said Ramaphosa’s first constitutional reservation related to the restrictions on the rights to freedom of expression and access to information.
“The president reasons that the Bill limits both of these sections. The Bill restricts media freedom and the public's right to access and share information.”
It also said Ramaphosa had raised concerns about the definitions of “national security” and “state security matter”, which were broad as they were not closed list definitions and were drafted in an open-ended manner with the use of the word “includes”.
Ramaphosa had reservations regarding the limited defences provided in the Bill to the offences set out in the proposed law, and the classification of state information that provided a head of an organ of state may delegate the authority to a staff member at a sufficiently senior level.
During the committee discussions, ACDP chief whip Steven Swart highlighted the procedural shortcomings of the Bill's development, noting that the legal services were not included in its formulation as conducted by an ad hoc committee.
“I don’t know what the reason was. Had they been included, we might be in a different situation today,” Swart said, adding that his party, along with the IFP and DA, had argued against the controversial Bill.
He described the Bill as having “a chilling effect on whistleblowers and journalists and anyone with classified information”.
DA MP Glynnis Breytenbach said they agreed with the legal opinion as it raised matters her party had argued on the Bill, but they were ignored.
ANC MP Oscar Mathafa raised questions about whether the current portfolio committee or a newly established ad hoc committee should be tasked with addressing the Bill's issues.
While MK Party’s Sibonelo Nomvalo stated they would engage further on the Bill during deliberations, EFF MP Rebecca Mohlala said her party will go back with thorough researched work of whether they agreed or not.
“Our concern is that the Bill went back and forth for about 15 years. This thing must not repeat itself,” Mohlala said.
Committee chairperson Xola Nqola said it was quite unprecedented that a Bill could take such a long time being in and out of Parliament and the Presidency.
“It is not an ideal situation that all of us would envisage. It means there are deep-seated issues we need to take deep consideration of when considering matters related to this Bill,” Nqola said.
He also said the question was whether to start the Bill afresh and rework it in accordance with what has been raised by the president.
“Are we detaching the committee from working on this Bill and making a recommendation to the House to establish an ad hoc committee to deal with matters relating because it has issues that cut across a number of disciplines?”
Nqola also said another option was to consider whether the Bill has been “exhausted, incurable, and irreparable”, such that they should just make a recommendation to the House to rescind and discontinue with it, given the provisions of the Promotion of Access to Information Act.
“What we see is not desirable for the work of Parliament and all the arms of the state. It is not desirable to work in this manner. Would it be acceptable to Parliament to enact and send it to the president for assent, and the president has reservations,” he said.
“This back and forth is problematic for the work of the public service and the people of South Africa. We are to look for a day to attend and determine the future of this Bill,” Nqola added.