The National Council of Provinces (NCOP) yesterday passed the Protection of State Information Bill despite the objection of all opposition parties and civil society organisations. This Bill in its current form remains inconsistent with the Constitution, and the DA therefore commits to continue to fight it. If need be, we will take this fight all the way to the Constitutional Court.
During the deliberations on the bill in the Ad Hoc Committee, the DA pushed for the inclusion of a series of amendments, including:
- A public interest defence;
- A strengthened public interest override;
- The removal of clause 1(4) which would allow the Bill to trump the Promotion of Access to Information Act;
- A sufficiently limited definition of “national security”;
- A review of sections pertaining to almost all offences (such as the possession and disclosure of classified information);
- The removal of all minimum sentences;
- The removal of Valuable information; and
- The removal of provincial archives.
Some important changes were proposed in the NCOP, due to the tireless efforts of opposition parties and civil society. The ANC agreed to significant amendments to section 43 which have resulted in an exemption from prosecution for possession and disclosure but only for a limited number of exceptions. Most importantly, the ANC also agreed to delete section 1(4) which would have allowed the Secrecy Bill to trump the Promotion of Access to Information Act and section 49 of the Bill which would have meant that anyone in possession of state security information would have been guilty of an criminal offence. This was a great victory for media freedom in South Africa.
However, these proposals did not go far enough. The absence of a strengthened public interest defence clause in this Bill will endanger whistle blowers of corruption and wrongdoing. While it is important to have legislation that seeks to classify some state information, this Bill will effectively enable government to hide corruption and other information it deems embarrassing.
The DA requires, in addition to the inclusion of a public interest defence clause and other amendments, that the following provisions be excluded:
- minimum sentences;
- provincial archives; and
- ‘valuable’ information.
The DA will push hard for these changes to be made when the bill returns to the National Assembly next year. An Ad Hoc Committee must be established to consider the changes made in the NCOP and propose further amendments.
The DA will 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 Parliament for reconsideration of its constitutionality.
Should the President 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 our petition to refer the law directly to the Constitutional Court as provided for in section 80 of the Constitution.
It is clear that the ANC has been prepared to make some key changes to this bill during the NCOP process. We welcome their willingness to negotiate and consider proposals made by the Opposition. But we must be clear with them today: we will do everything possible to prevent the majority party from passing a bill which is unconstitutional.
This is our responsibility as Members of Parliament, who took an oath to uphold the constitution, and we will not abdicate this under any circumstances.