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The collapse of the ANC’s consultative process on the Secrecy Bill reveals its inability to match the opposition and civil society campaign. The Secrecy Bill has been sitting on the National Assembly’s Order Paper awaiting its second reading debate for more than eight weeks since the ANC interrupted the process by cancelling the debate and announcing that it would undertake consultative caravans throughout the nine provinces and into the remotest villages. This was always unprecedented and unprocedural, and the collapse of the consultation initiative now makes it plainly preposterous too.

It has become clear that the three-ringed consultative circus stage had not even reached five of the eight provinces in ANC control a fortnight ago. This was the exercise during which “inter-Parliamentary” forums (meaning simply all MPs, MPLs and councillors in a given province) were supposed to be briefed on the Bill before carrying the message out to the party faithful and the people. What the message was, we will now never know. Was it that the Bill is just fine the way it is now? That the improvements achieved in the rewritten Bill should be reversed? That the ANC can put on a bigger show of force than the opposition and the Right to Know campaign? Clearly it cannot, and the announcement that the second reading debate is to take place next week is an admission of defeat.

This farce has also shown up the fact that there is a complete blurring of the line between party and state in the head of Secretary-General Gwede Mantashe. Earlier, he summoned Speakers and Chief Whips, not only of the Provincial Legislatures but also of Parliament itself, to a meeting at O.R. Tambo to discuss the consultative process. The same conceptual confusion appeared to be present in the first statements of the ANC Chief Whip in the National Assembly, before protestations began appearing that no public money or public institution would be used for this ruling party exercise.

The greatest irony of the whole debacle is that the ANC could have had the input of all the regional People’s Assemblies and Provincial Legislatures if it had heeded our call to tag the Bill as affecting the provinces in terms of Section 76 of the Constitution. This triggers an elaborate legislative mechanism under which the public is consulted and mandates are sought from and brought back to the provinces.

The tagging issue remains one of the Constitutionally problematic aspects of the Bill. Intelligence is a national competence, but the Bill affects provincial archives for declassification purposes, and provincial archives are an area of exclusive provincial legislative competence. The Constitutional Court has declared at least one law (the Communal Lands Rights Act) null and void for the reason that it should have been legislated under Section 76.

Even under a Section 75 process, any changes (whether good or bad) could always have been brought in the National Council of Provinces. We hope that the Deputy President’s openness to some form of improved public interest provision will in fact bear fruit there.