Ramaphosa sends 'secrecy bill' back to parliament

Zuma-era bill 'impermissibly vague and in violation of the constitutional principle of legality'

11 June 2020 - 20:15 By aphiwe deklerk
No to secrecy.
No to secrecy.
Image: Facebook/My Vote Counts

President Cyril Ramaphosa has sent the so-called "secrecy bill" back to parliament due to concerns on its constitutionality.

Ramaphosa’s move can be seen as a win for whistleblowers, media freedom and free speech.

He sent back the bill - officially known as the Protection of State Information Bill - earlier this month, citing concerns about its constitutionality.

The bill has courted controversy and criticism since it was first mooted in 2008. It saw opposition for most of former president Jacob Zuma’s years at the Union Buildings.

Civil society and opposition parties have long protested against the proposed legislation, saying it would criminalise media freedom and was meant to protect the ruling ANC, which has dogged by corruption scandals over the years.

The main concern from its critics was that the bill could be used to prosecute whistleblowers and stifle freedom of the press through its criminalisation of the possession of classified documents. It was also criticised for its vagueness on who had the power to classify such documents as top secret.

This will be the second time the bill is referred back to parliament, after Zuma initially did so for “minor editorial issues”.

In his letter to National Assembly speaker Thandi Modise earlier this month, Ramaphosa raises serious concerns about the constitutionality of the bill.

“The bill limits the freedom of the media (and everyone else) to access or receive and impart information. This is a limitation of section 16 [of the constitution]. The bill also prohibits people from accessing certain information held by the state. This limits section 32.

“Such limitations are not constitutionally impermissible if such limitation complies with section 36 of the constitution. In terms of section 36 of the constitution, the rights in the Bill of Rights may only be limited in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors,” said Ramaphosa.

He further argued that the bill may open to a constitutional challenge for being vague where it gives powers on who has the authority to classify documents, as it refers to any head of an organ of state who can then delegate these powers to a staff member at a “sufficiently senior level”.

“'Sufficiently senior' is an undefined term, and it is unclear who can designate staff members, and how such designation is determined. This leaves these provisions of the bill open to constitutional challenge for being impermissibly vague and in violation of the constitutional principle of legality, as enshrined in section 1 of the constitution.”