President Zuma Returns Secrecy Bill to Assembly

12 September 2013

South African President Jacob Zuma Sept. 12 referred the controversial Protection of State Information Bill back to the National Assembly to address constitutionality issues. 

“It is my opinion that the bill would not pass constitutional muster,” he said.

Zuma’s move was welcomed by critics, who see it as another chance to amend the bill, but they charged that his focus of concern was too narrow.

Zuma “is up to his usual tricks,” one widely known South African lawyer and activist told  The two sections that the president found troublesome are only a few of the constitutional issues with the bill, critics said. Still, the resubmittal provides an opening for a wide debate.

Zuma’s surprise announcement came at a lunch for members of the parliamentary Press Gallery Association. The bill was passed 189-74 in the National Assembly in April, and critics had pledged a  constitutional challenge in court.

Zuma said sections 42 and 45 “lack meaning and coherence, consequently are irrational and accordingly are unconstitutional.”  Section 42 penalizes failure to report unauthorised possession of classified material and Section 45 penalizes improper classification in order to hide wrong-doing.  Critics have called the prison terms included excessive.  The official communique to parliament is not yet available.

Of more concern to critics of the “secrecy bill” are provisions that criminalize whistleblowing and publication of classified material by the media. These are not covered by Zuma’s parameters. Activists were quick to say that the parliament should take a broader look.

The provisions Zuma found problematatic concern criminal liability for violating parts of the law. South African constitional expert Pierre de Vos reacted on Twitter by saying the provisions Zuma cited are “not the real constitutionally problematic one’s.” He also write:  “Section 42 nonsensical. Section 45 creates criminal offence when you classify documents to conceal corruption.” He is Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town.

Section 45 criminalizes the wrongful classification of information.

Although supported by the ruling African National Congress, the bill was strongly opposed by the Congress of South African Trade Unions (Cosatu), civil society groups who formed the Right2Know Campaign and all opposition parties.

The Open Democracy Advice Centre (ODAC) supported President Zuma’s conclusion that the bill still does not pass constitutional muster. “However, ODAC believes that the unconstitutionality and inappropriateness of the Bill extends beyond clauses 42 and 45, and instead goes to the underlying rationality and foundation of the Bill itself,” the group said in a statement.

ODAC said it hoped parliament will consider more than the issues raised by Zuma.

Similalry, a statement from the Right2Know Campaign hailed the move as a victory but said, “These are only two of many draconian aspects of Bill that Parliament must resolve to avoid a constitutional challenge.”

An analysis of the constitionality issues by Pierre de Vos published in May said:

The version now awaiting President Jacob Zuma’s signatory, while still a thoroughly bad piece of legislation aimed at allowing the covering up of wrongdoing and abuse of power by the intelligence services, is much improved. However, the Bill is unlikely to pass constitutional muster.

 See reporting in the Mail & Guardian and Business Day.

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