With the Secrecy Bill needing only President Jacob Zuma’s signature now before it becomes law, civil society organisations are preparing to take their fight to the Constitutional Court, where they feel its ultimate fate should be decided.

The National Assembly passed the Protection of State Information Bill, dubbed the Secrecy Bill, yesterday with 190 members in agreement and 73 voting against it.

Right2Know’s Murray Hunter said despite encouraging changes, the Bill remains flawed and could still be used block the free flow of information and hide corruption.

“We feel duty-bound to approach the court in order to declare this unconstitutional legislation invalid.”

The Bill’s aim is to regulate the classification of state information, but has been slammed by the media, civil society, and opposition parties for parts in it that undermine the right to access information and the rights of whistleblowers and journalists.

Corruption Watch made a presentation in parliament during the final round of public hearings on the Secrecy Bill last year, arguing that the best weapon to defeat corruption is an informed public.

Executive director David Lewis said at the time that “sunlight is the best disinfectant” when targeting multiple acts of corruption and that the country needed “public witnesses, publicly told stories, stories that isolate the venal public servant and the corrupt business person …”

A public that is free to inform and be informed is central to the fight. “This, we insist, must be a strong consideration that informs judgement about what is acceptable and not acceptable about the Protection of State Information Bill,” Lewis added.

While the Bill’s purpose was to defend national security, the greatest threats and dangers confronting South Africa today were poverty, inequality, unemployment and corruption.

“If we have learnt nothing else in our short experience, we have learnt that South Africans not only fear – and with good reason – reporting corruption, but that this fear will be exacerbated if the Bill is passed into law,” Lewis said.

Zuma to get legal opinion

The Presidency’s Mac Maharaj said on Friday morning: “The legislature now has to formally put the Bill before the President for his consideration. It has to put it in a particular version so that when he signs the bill it is the accurate version. The President, when receiving the Bill, has to get legal opinion again.”

Opponents of the Bill are hoping President Jacob Zuma will make use of Section 79 of the Constitution, which allows the president to send a Bill back to the National Assembly for further deliberations, and then to the Constitutional Court for an opinion on the Bill’s constitutionality, the Mail & Guardian reported.

This would allow the president to ensure the Bill is fully constitutional before he signs it into law, according to M&G. Read the full report here.

R2K: what’s still wrong with the Secrecy Bill

The Secrecy Bill only has narrow protection for whistleblowers and public advocates (not a full Public Interest Defence) that excludes a range of matters in the public interest like shady tendering practices or improper appointments within key state agencies.

This half-measure fails to acknowledge the urgent need to address South Africa’s whistleblower crisis — as well as the global abuse of national security laws to protect state interests against the scrutiny of citizens.

A whistleblower, journalist or activist who discloses a classified record with the purpose of revealing corruption or other criminal activity may be prosecuted under the “espionage” and other offences not covered by the proposed Public Interest Defence.

People can be charged with “espionage”, “receiving state information unlawfully” (to benefit a foreign state), and “hostile activity” without proof that the accused intended to benefit a foreign state or hostile group or prejudice the national security; only that the accused knew this would be a “direct or indirect” result.

While the Bill limits the number of agencies and people that can classify, it still gives powers of the Minister of State Security to give classification powers to other state bodies (and junior officials) without adequate public consultation.

The Secrecy Bill still lacks of a Public Domain Defence, effectively criminalising the population at large when classified information becomes public, rather than holding those responsible for keeping secrets accountable.

The Bill still contains draconian sentences of up to 25 years in jail.

The procedure permitting applications for the declassification of classified information is in conflict with the Promotion of Access to Information Act – despite commitments from the National Council of Provinces to the contrary.

The body established to review this process – a Classification Review Panel – is not sufficiently independent and the simple possession of classified information appears to be illegal even pending a request for declassification and access.

Information that has been made secret in terms of old and potentially unconstitutional laws and policies will remain classified under the Bill pending a review for which no time limit is set. This includes information classified under the apartheid-era Protection of Information Act of 1982 and the government policy adopted in 1996, the Minimum Information Security Standards.

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With the Secrecy Bill needing only President Jacob Zuma’s signature now before it becomes law, civil society organisations are preparing to take their fight to the Constitutional Court, where they feel its ultimate fate should be decided.