President Cyril Ramaphosa.
- President Cyril Ramaphosa has referred the controversial Protection of State Information Bill back to Parliament.
- He is concerned about its constitutionality.
- The Bill has been unsigned for seven years after it was contentiously passed in 2013.
President Cyril Ramaphosa has referred the controversial Protection of State Information Bill, or the Secrecy Bill as its many critics have dubbed it, back to Parliament as he “cannot assent to the bill” given his reservations of its constitutionality.
The contentious bill has been gathering dust, unsigned in the Presidency since 2013.
In a letter to National Assembly Speaker Thandi Modise dated 2 June, Ramaphosa noted former president Jacob Zuma had previously sent the bill back to Parliament and while he appreciated the unorthodoxy of his move to again refer it to the legislature he believed it was the only way to proceed.
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Ramaphosa said while Zuma had sent the bill back flagging “minor editorial issues”, his reservations about its constitutionality were based on several legal opinions.
He noted Section 32 of the Constitution guaranteed everyone had the right of access to any information held by the state, and any information that was held by another person and that was required for the exercise or protection of any rights, and section 16 guaranteed freedom of expression, including press freedom.
“It is clear that the bill limits both of these sections,” he wrote to Modise.
“The bill limits the freedom of the media [and everyone else] to access or receive or impart information. This is a limitation of section 16.
“The bill also prohibits people from accessing certain information held by the state. This is a limitation of section 32.”
‘Unjustifiable’
Ramaphosa said the importance of a single, coherent act setting out national security restrictions “cannot be gainsaid”, but the limitations on sections 16 and 32 “may be unreasonable or incapable of being justified”.
He also had several other “reservations” about the bill, namely:
- Over-broad definitions of “national security” and “state security
matter”, which would leave scope for classifying officials to interpret
it as they saw fit; - The lack of a public interest defence,
which, according to Ramaphosa, would create an “unjustifiable chilling
effect on the freedom of expression”; - The lack of a public domain defence;
- The vagueness on who can classify and declassify information; and
- The incorrect tagging of the bill as one which does not affect provinces.
Ramaphosa said given his concern about the tagging of the bill, it would also have to be considered by the National Council of Provinces.
Last July during the State Security Agency’s budget vote debate, Deputy State Security Minister Zizi Kodwa said it had recommend bill be reconsidered, or referred to the Constitutional Court to provide an opinion on its constitutionality.
In his letter to Modise, Ramaphosa said the bill should first be referred back to Parliament before the court could express an opinion.
The bill was first introduced by then-minister of state security Siyabonga Cwele in 2010 and it and drew much criticism from civil society as draconian while it was before Parliament.
The National Assembly first passed it in April 2013, but in September of that year, Zuma sent it back to Parliament. It has been in limbo ever since.
