Secrecy bill: Zuma blinks

President Jacob Zuma made a surprise announcement yesterday when he instructed parliament to review "unconstitutional" sections of the controversial secrecy bill.

Though some commentators praised him, others believe the sections concerned are "mundane" and that parliamentarians will be prevented from changing the more controversial aspects of the bill.

They will not be able to reconsider issues such as the proposed imprisonment of journalists and of others found in possession of classified information, say critics.

In April, the ANC succeeded in pushing the the Protection of State Information Bill through parliament after two years of vehement opposition.

State Security Minister Siyabonga Cwele said the bill was aimed at protecting sensitive state information and the information of ordinary people, such as marriage certificates.

But yesterday Zuma said: "After consideration of the bill and having applied my mind thereto, I am of the view that the bill as it stands does not pass constitutional muster."

He said he had sent the bill back because of problems with two sections that lacked "meaning and coherence" and were "irrational" and therefore "unconstitutional".

The bill, with some changes, was passed in the National Assembly by an overwhelming majority. It was adopted by parliament with 189 votes in favour, 74 against and one abstention. All it needed to become law was Zuma's signature.

Pressed on the precise reasons for sending it back to parliament, Zuma said: "It is my opinion that the bill would not pass constitutional muster."

After parliament had approved the bill and forwarded it to Zuma to sign into law, critics had still urged him to take it to the Constitutional Court so it could be tested.

But, said Zuma, he did not believe the Constitutional Court would "fix any bill. If I send it to them they will send it back and say this bill is not constitutional." He had instead decided to refer it back to "the people who will fix what I think is wrong".

A spokesman for the Right2Know Campaign, Murray Hunter, called on MPs to "seize this opportunity to redeem themselves and redraft the bill to bring it in line with the values of openness and transparency upon which we can ensure an accountable democracy able to deliver the needs of our people".

Mpumelelo Mkhabela, chairman of the SA National Editors' Forum, said it welcomed Zuma's decision. Though he had cited only a few problematic clauses, these were merely examples. "Parliament has an opportunity to reconsider other clauses that might be unconstitutional," Mkhabela said.

DA parliamentary leader Lindiwe Mazibuko said: "The DA has fought hard to ensure this bill, in its current form, is not signed into law and will continue to do so."

The director of the Institute for Accountability in Southern Africa, Paul Hoffman, said there had always been problems with the constitutionality of the bill "because it undermines the ideas of openness, accountability and responsiveness, which are foundational values of our constitutional order".

The parts of the bill sent back to parliament by Zuma, sections 42 and 45, deal with the prosecution of people who deliberately hide government wrongdoing and corruption. But the bill has been criticised for its opposite aims, including the prosecution of whistleblowers and journalists who expose corruption.

Constitutional law expert Pierre de Vos differed with those who hailed Zuma's move as good news, saying the sections he had referred back to parliament were mundane.

He said MPs would be limited to sections 42 and 45 and would be prohibited by parliamentary rules from touching any other sections of the bill.

ANC caucus spokesman Moloto Mothapo said it was confident that the amendments would "further strengthen the bill and its objectives of protecting citizens' information and enhancing national security through protection of sensitive government information".

Phenyo Butale, the executive director of the Freedom of Expression Institute, said the bill needed to be tested so a "proper version" of the law was put together.

Parliament will set up a committee and report back within six weeks.