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Menings | Opinion > SeminaarKamer | Seminar Room > English > Essays

Legal opinion relating to the passing of the protection of state information bill


Melanie Schoeman - 2011-11-23

Untitled Document

Aim of the Act

This new controversial law has been proposed in order to protect the state against "espionage" and guard "national interests", but among other things it will have the effect of being able to gag the media.

Opponents of the law dubbed it the "secrecy bill" due to the severe restrictions it places on the freedom of information and the excessive penalties it imposes upon those who infringe the law.

The new draft sought to create a law that would allow any organ of state, from the largest government department down to the smallest municipality, to classify any document as secret and set out harsh penalties of up to 25 years in jail for whistleblowers.

Criticism

The South African parliament’s vote to pass the controversial Protection of State Information Bill is a blow to freedom of expression and democratic accountability, Human Rights Watch said today.

There has not been given sufficient attention to the constitutional provisions and the way that the limitation of this right to freedom of expression is reasonable and justifiable in a democratic society.

The bill as passed is still in need of serious revision. If implemented, its effects will be that it will:

  • unacceptably curtail both the right to access information and freedom of expression, which are the foundation of a democratic society
  • obstruct the free flow of information
  • usher in a new era of secrecy
  • pose a threat to democracy
  • be the wall behind which much evil and corruption could be hidden.

Possible Solutions

Media and civil organisations insist that the Bill should include a public interest defence, as enshrined in state secrecy legislation in Canada.

Such a defence would enable journalists and others who published classified information under pain of prison to argue in mitigation that they had done so in the public interest.

It is also important that the right to balance culpability against public good should be given to judges.

Way Forward

The bill must now go before the National Council of Provinces, a legislative body created by the new constitution in 1996 to promote “cooperative government”. That entails consultation with the citizens of the eleven provinces before any bill can become law.

Thereafter it will be presented to the National Assembly before the president signs it and it gets gazetted.

If not enough MPs have the courage to do the right thing, Cabinet will be urged to use the bill’s passage through the National Council of Provinces to redraft it with the inclusion of a public interest defence clause.

If it passes through the legislature in its current form, an appeal should be made to President Zuma to exercise his right to submit the bill to the Constitutional Court for ratification before he signs it into law.

Helen Zille, the DA opposition party leader, has indicated that she will lead an application to the Constitutional Court to have the act declared unconstitutional if this bill is signed into law.

Supporters of the Constitutional Court referral include, but are not limited to, the other opposition parties such as the IFP and Cope, civil rights group Afriforum, South African media as a collective, The South African National Editors’ Forum and The National Press.

Public Protector Thuli Madonsela has set up a team to investigate concerns around the Bill, and “Black Tuesday" protests have been declared by which South Africans are called upon to don black as a form of protest.

If none of these things happens, it will be up to civil society and the political opposition to ask that court to declare it the abomination that it is.

Personal Opinion

I agree with the views of Dale McKindley of the Right2Know campaign and Professor Steven Friedman of the Centre for the Study of Democracy at the University of Johannesburg, in that:

The passing of the Protection of State Information Bill came as no surprise as all indications were that the ANC would use their majority to push the legislation through Parliament while opposition parties present in the House voted against the measure and hundreds of black-clad activists protested against it outside the gates of Parliament and elsewhere in the country, clearly indicating that the way in which the bill was campaigned against was wrong.

We are therefore left with a flawed and dangerous piece of legislation.  

Making new laws and policies is usually a very slow process involving a number of stages during which key issues are debated and negotiated before being finalised as official government policy or before being passed as a law. It can take a few years before a proposed law or policy is implemented and before its impact is felt on the ground.

Unfortunately in South Africa passing legislation has become an intricate and challenging process and legislation is oftentimes passed in record time without proper consultation with relevant stakeholders or the proper following of channels.

A prime example is the changes made to certain a clause of the constitution of the ANC Youth League’s which made headlines during the past weeks. Conflicting versions of how a mysterious change to the ANC Youth League's constitution came about continue as Julius Malema has been accused of changing the youth wing's constitution to discredit the findings of a disciplinary hearing.

It now appears that the ANC'S national disciplinary committee of appeals will eventually have to decide on the legality of the amendment, which allows the league to make its own decisions about any sanctions handed down by the mother body.

Another example is the National Credit Act.  Malan JA in a Supreme Courts of Appeal decision said the following: “Unfortunately, the NCA cannot be described as the best drafted Act of parliament which was ever passed, nor can the draftsmen be said to have been blessed with the draftsmanship of Chalmers.  Numerous drafting errors and inconsistencies make its interpretation a particularly trying exercise as demonstrated by the number of appeals that have arisen around the constructions of the Act.”

Although the Protection of State Information Bill at first blush seems to be aimed at correcting draconian provisions of the National Prosecuting Act, the scope of the new Protection of State Information Bill is much wider than the current legislation and may come as a nasty surprise to many stakeholders. 

And whether it is passed in totality or with proposed amendments the only certainty is that it is a controversial act which will be played out in the public arena, and regardless of the outcome it is of utmost importance that pragmatic legal advisors, such as myself, take note of the true extent and scope of the new act and advise their clients accordingly.