Why Ramaphosa referred the Secrecy Bill back to Parliament

Right2Know campaigners picketing.
Right2Know campaigners picketing.
Alet Pretorius/Gallo Images
  • The referral of the Protection of State Information Bill back to Parliament is a "testament to the enduring power of activism".
  • Sanef welcomed the referral of the bill, which posed a major threat to press freedom.
  • President Cyril Ramaphosa's decision was based on misgivings about the bill's constitutionality.

A sword hanging over a free media and an informed populace was sheathed when President Cyril Ramaphosa referred the Protection of State Information Bill back to Parliament.

If that bill, in the seven years it laid on a desk in the Union Buildings, saw a presidential signature, writing this report could well have been illegal, if an unnamed civil servant decided that Ramaphosa's letter to National Assembly Speaker Thandi Modise should be classified.

Merely being in possession of arbitrarily classified information would have been a criminal offence, punishable by jail time of a minimum of 15 years and a maximum of 25 years.

And the defence that it was in the public interest to disseminate the information wouldn't hold, neither would it be a defence that the information was already in the public domain.

In short, the state would be able to keep any information it wants secret, and anyone who shared that information could go to jail.

"Transparency and the free flow of information is so important for any form of social justice," said activist Murray Hunter.

Ten years ago, when then-state security minister Siyabonga Cwele first introduced the bill, which soon thereafter became known as the "Secrecy Bill", an organisation called Right2Know (R2K) was formed.

Murray isn't a member of R2K anymore, but he was back then.

'Enduring power of activism'

He recalled that time. Back then, the securocrats in government seemed adamant to pass the bill, calling its critics alarmists. At that time, it seemed like nothing would stop it.

However, many people came together and opposed the bill with great unity.

"It is really a testament to the enduring power of activism," Hunter said.

Also welcoming Ramaphosa's step was the South African National Editors' Forum (Sanef).

"The Protection of State Information Bill has been unsigned for seven years after it was passed by Parliament, following numerous submissions and some acrimonious debate," read a statement from Mary Papayya, Sanef's media freedom chairperson.

"Through the years, Sanef joined forces with other media freedom groups to raise awareness about the unconstitutional nature of parts of the bill.

"Protests against the bill's most draconian aspects – which at one stage included 25 years [in jail] for a journalist found to have 'classified' documents in their possession – were held in various newsrooms and gatherings around the country, and Sanef gave formal input to the parliamentary committee and officials on more than one occasion."

She said Sanef welcomed the opportunity to ensure that all aspects of the bill that are unconstitutional or too broad would be rectified, adding that it would be happy to give further input to finalise it.

Overbroad definitions of 'national security'

"There is no doubt that there is a need to update apartheid era secrecy legislation, such as the Protection of Information Act, 1982 which this bill seeks to repeal and replace. However, this bill does not do so constitutionally."

Papayya said Sanef's key concern, and apparently Ramaphosa's, was the lack of a public interest defence.

"President Ramaphosa rightly recognised that the lack of a public interest defence 'would create an unjustifiable chilling effect on the freedom of expression'," she said.

In his letter to Modise, dated 2 June, Ramaphosa expressed his misgivings about the bill's constitutionality.

He noted that Section 32 of the Constitution guaranteed that everyone had the right to 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."

Furthermore, Ramaphosa also expressed his concern about the overbroad 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.

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