Background
The Protection of State Information Bill (“POSIB”) was passed by the National Assembly on 25 April 2013 by a margin of 179 votes for to 74 votes against with one abstention [1]. Despite being considerably reworked by the National Council of Provinces to include positive amendments [2], POSIB is still a danger to the right of freedom of access to information [3].
The Helen Suzman Foundation has strongly condemned POSIB as being counterproductive and detrimental to a liberal democratic constitutional order operating under the rule of law.
As a recent Moneyweb article summarised it, some of the major constitutional issues with POSIB are that:
- that it was improperly tagged and legislates over provincial archives (which are an exclusive provincial competence);
- the public defence clause is a narrow one and could possibly undermine existing protections for whistleblowers;
- the definition of ‘espionage’ is far too broad and is subject to abuse;
- the sentences for offences committed in terms of the legislation are wholly disproportionate and are unduly harsh [4].
POSIB has been consistently criticised as being unconstitutional by opposition parties, the media, civil society and even by some within the ANC. POSIB is a divisive and worrying piece of legislation as it has the capacity to be abused by undermining constitutionally necessary accountability [5].
Section 79 of the Constitution
Whilst many column inches and online articles have been dedicated to correctly analysing the negative effects of POSIB and what it could mean for journalistic and political freedom, the HSF notes that there is still hope for this piece of legislation to be remedied [6].
In terms of Section 79 of the Constitution, the President of the Republic “must either assent to and sign a Bill passed in terms of this Chapter or, if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration.” [7]
This means that although the parliamentary process has ended, the President still has the power to ensure that the constitutionally protected right of access to information is given its full and proper meaning and is not encumbered by POSIB which should speak to issues of national security only.
In terms of section 79 [8]:
3. The National Council of Provinces must participate in the reconsideration of a Bill that the President has referred back to the National Assembly if
a. the President's reservations about the constitutionality of the Bill relate to a procedural matter that involves the Council; or
b. section 74(1), (2) or (3)(b) or 76 was applicable in the passing of the Bill.
4. If, after reconsideration, a Bill fully accommodates the President's reservations, the President must assent to and sign the Bill; if not, the President must either
a. assent to and sign the Bill; or
b. refer it to the Constitutional Court for a decision on its constitutionality.
Given that the new Bill has come under such immense scrutiny as well and that the opposition to the Bill has even meant that political opponents have united for the sake of seeing its defeat, it would be remiss of the President to assent to and sign POSIB into law [9]. The weight, quality and nuance of the submissions made as to POSIB’s illegality should have been given more concern by Parliament. Its failure to do so has now passed the buck to the President.
The President should duly apply his mind to the submissions and send POSIB back to the Assembly for it to be reworked. If the NCOP could find as many things with the Bill in need of amendment, it should be the case that on a more detailed reading the Assembly should find further things to change. The Assembly need not even have to look for possible amendments mero motu. All it need do is refer to the submissions that have been made to it.
In the Simelane case, the Constitutional Court struck down the President’s appointment of Menzi Simelane to the post of National Director of Public Prosecutions. It did so on the ground that it was irrational for the President to have not applied his mind to the evidence which questioned Simelane’s suitability for appointment. Should the President fail to apply his mind to the evidence that suggests he should not assent to POISB, it is likely that upon a legal challenge. similarly he could be found to have acted irrationally. That is notwithstanding the merits of the arguments that stand in opposition to the Bill and which will have to be heard if POSIB becomes an Act.
The President should seek objective legal advice that can aid him in exercising his executive authority. If the President’s counsel suggests that the Bill is constitutional and he signs it into law, then he may be faced with yet another embarrassing loss before the Courts even though this debacle is technically not of his own doing.
Further to this, the President can still avert a politically embarrassing defeat and refer it to the Constitutional Court without being a cited party to a court challenge. In asking the Constitutional Court for its opinion, it is likely that POSIB’s constitutionality will be determined immediately rather than have its status and his office’s credibility be further damaged if POSIB is dragged to the Constitutional Court via a civil legal challenge anyway. The President can take a principled decision about a worrying piece of legislation that will even have a political benefit for him – although it should be constitutionality and not politics that is his primary concern.
The President is entitled to do this and should. In the Liquor Bill case, then President Mbeki referred a bill seeking to regulate the production, manufacturing and distribution of liquor at a national level. Given that licensing is an exclusive provincial competency, the President referred the Bill to the Constitutional Court for an opinion as to whether the Bill had met the Constitution’s own safeguards when it comes to national legislation in the areas of a provincial competence. In that case, then President Mbeki duly considered significant opposition to the Bill and his concerns were found to be vindicated. President Zuma should do the same.
Conclusion
President Zuma has been dogged by allegations that he has no respect for the rule of law and that he has failed time and time again to uphold the spirit of the Constitution. It is a great irony that such a perilous piece of legislation could serve as his own Rubicon. He has a unique opportunity to answer his critics and reaffirm his own stance that he is an avowed constitutionalist: he should refer POSIB back to the Assembly or directly to the Constitutional Court so that its legality can be settled in as least divisive a way as possible.
References
[1] http://www.bdlive.co.za/national/2013/04/25/fractious-national-assembly-passes-secrecy-bill
[2] http://www.iol.co.za/news/special-features/ncop-changes-to-info-bill-welcomed 1.1486312#.UYe1vbVTByw
[3] http://www.bdlive.co.za/opinion/editorials/2013/05/06/editorial-why-the-secrecy-bill-must-go
[4] http://www.moneyweb.co.za/moneyweb-cross-currents/the-key-objections-to-the-secrecy-bill
[5] http://www.sabc.co.za/news/a/d376a7004f7ce8d086d7e60b5d39e4bb/Info-Bill-still-a-threat-:-FXI-20130503
[6] http://constitutionallyspeaking.co.za/president-must-refuse-to-sign-sabc-bill/
[7] http://www.info.gov.za/documents/constitution/1996/96cons4.htm#79
[8] Ibid.
[9] Note 1 above.
Kameel Premhid – kameel@hsf.org.za
Intern
Helen Suzman Foundation
