08-05-2025
Parliament's legal services agree with Ramaphosa on Secrecy Bill
Parliament's legal services back President Cyril Ramaphosa's objections to the Protection of State Information Bill, citing risks of power abuse and rights infringements.
Key concerns include restrictions on media freedom, broad definitions of "national security", and uncertain classification processes.
Ramaphosa referred the contentious Zuma era bill back to Parliament in 2020.
The Protection of State Information Bill could result in the abuse of power and unreasonable infringements of rights, and it could undermine the principle of legality.
Parliament's legal services endorsed this view of President Cyril Ramaphosa when he sent the contentious piece of legislation, officially known as the Protection of State Information Bill, back to Parliament in June 2020.
On Wednesday, the State Security Agency informed the Portfolio Committee on Justice and Constitutional Development that it would rely on the committee's guidance on how to proceed.
Committee chairperson ANC MP Xola Nqola said there were three possible pathways for the committee to deal with the bill: start processing it afresh, recommend to the National Assembly to refer it to an ad hoc committee, as it had issues pertaining to several departments and was processed by an ad hoc committee during its first turn before Parliament, or consider the bill 'exhausted' and 'uncurable' and recommend the House to rescind it.
The committee will decide this on a future date, but no party has expressed an interest in passing the bill in its current form.
The draconian bill was introduced in 2010 - the early days of Jacob Zuma's reign - and amid much opprobrium from opposition parties and civil society, especially the media, it was passed by Parliament in 2013.
Zuma never signed it. Had he done so, his government could have classified much of the information about state capture that eventually made it into the public domain, and the whistleblowers and journalists who reported on it could have faced jail time.
Ramaphosa also did not sign the bill and referred it back to the Sixth Parliament. It was referred to the Portfolio Committee on Justice and Correctional Services, which did not do much in the way of processing the bill.
It lapsed when the Sixth Parliament rose and was revived by the Seventh Parliament and referred to the Portfolio Committee on Justice and Constitutional Development.
And so, 15 years after its introduction, the committee received a briefing from legal services about the bill on Wednesday.
The presentation reviewed the grounds on which Ramaphosa referred the bill back.
He reasoned the bill would limit the rights to freedom of expression as guaranteed by sections 16 and 32 of the Constitution.
The bill would limit the freedom of the media - and everyone else - to access or receive and impart information - a limitation of section 16. The bill also prohibits people from accessing certain information held by the state, limiting section 32.
Second, Ramaphosa found the bill's definitions of 'national security' and 'state security matter' too broad.
'As a result, the definitions leave scope for classifying bodies and officials to interpret the definitions of 'national security' and 'state security matter' as they see fit,' read the presentation to the committee.
Ramaphosa also had reservations about a lack of public interest defence to offences relating to unlawful disclosure and possession of classified information, as this 'will create an unjustifiable chilling effect on the freedom of expression'.
He also had a reservation that the bill in its current form does not afford anyone in possession of classified information an opportunity to rely on the public domain defence.
'The president asserts that it is a basic principle of privacy law that once information loses its secrecy for being in the public domain, for example, such information can no longer be protected,' read the presentation.
Ramaphosa also had reservations about the bill's provisions for the classification of state information that would allow a head of an organ of state to delegate, in writing, the authority to classify state information to a staff member at a sufficiently senior level.
'The president expressed concern that 'sufficiently senior' is an undefined term and it is unclear who can designate staff and how such designation is determined. The clauses pertaining to classification of state information are 'impermissibly vague', unconstitutional as they unjustifiably limit the right to freedom of expression and access to information,' read the presentation to the committee.
'Our office holds the view that there is merit in most of the president's reservations as these address crucial issues of ambiguity [which could result in abuse of power], unreasonable infringements of rights, and application that could undermine the principle of legality.'
Legal services only disagreed with Ramaphosa on one point: the bill's tagging.
Tagging refers to whether a bill affects provinces, in which case it is tagged as a section 76 bill, and if not, it is tagged as a section 75 bill. This affects the process of the bill's passage through Parliament, especially in the National Council of Provinces.
Ramaphosa argued that the bill was wrongly tagged as a section 75 bill, as it does affect the provinces.
Legal services advised that it is up to the committee to decide how to proceed with the bill.
READ | Why Ramaphosa referred the Secrecy Bill back to Parliament
Veteran lawmaker MP Steve Swart of the ACDP recalled how he was part of the initial processing of the bill, and how the points raised by Ramaphosa and legal services, were also raised by opposition parties, civil society and even some ANC MPs.
He said legal services were not included in the initial process.
'Had they been included, we might have been in a different situation today.'
Swart added a major concern with the bill was that state departments could use it to conceal corrupt activities.
He said they welcome the opinion 'that at the end of the day, the bill is unconstitutional', adding it would have a chilling effect on journalists and whistleblowers.
DA MP Glynnis Breytenbach said her party, too, argued the points that were now raised but were ignored.
'This whole thing needs to be revisited,' she added.
ANC MP Oscar Mathafa questioned whether it would not be proper for an ad hoc committee to deal with the bill, as it was initially processed by an ad hoc committee.
Like MK Party MP Sibonelo Nomvalo, Mathafa expressed concern that Minister in the Presidency Khumbudzo Ntshavheni did not attend the meeting, as she could have assisted.
Mathafa noted that the bill had been bouncing between Parliament and the Presidency for 15 years - three terms of Parliament.
EFF MP Rebecca Mohlala was also concerned that the bill went back and forth for 15 years and pledged to come back to the committee with 'thoroughly researched work' on whether the EFF agreed with the bill or not.
Nqola described the initial processing of the bill as 'one of the things some of us has seen on TV' and said he did not think at the time it would still be discussed by Parliament when he became a member.
