The Protection of Information Bill has moved a step closer to becoming law as MPs adopted a final draft, despite opposition objections and threats of legal challenge.
Yesterday he ANC prevailed in the final vote on the contentious state secrecy bill with a comfortable majority, as it had on Friday in clause-by-clause deliberations.
After the vote, Steve Swart of the ACDP reiterated that it would petition President Jacob Zuma to refer the bill for constitutional review.
Swart said this was because, despite endless petitioning, the final draft lacked a public interest defence to protect people who published classified information to expose state wrongdoing.
The ACDP could find support from the DA.
DA MP David Maynier said his party would take legal advice on whether the bill would pass constitutional muster without such a defence. It would then decide whether to petition the president in terms of clause 79 of the constitution.
“I am shattered and disappointed by the outcome of the legislative process,” Maynier said. “The fact is that despite making improvements in the bill, we were not, in the end, able to defang the bill.”
Last week, before the ink was dry on the bill, civil society organisations threatened to launch a Constitutional Court challenge if the president signed it without amendments to protect the media and whistle-blowers.
However, Cecil Burgess, the ANC chairman of the ad hoc drafting committee, told MPs he was satisfied that a sound piece of legislation had been delivered.
“We have taken all necessary steps to ensure the bill passes the constitutional test. The most important amendments have been done on the advice of legal experts,” he said.
The bill would be tabled in the National Assembly before the legislature rose late this September, said Burgess.
It will be several months at least before the bill goes on to the statute books.
It will first go the National Council of Provinces, then to the president for signature, and become law only once the minister of state security has drafted the required regulations for its implementation.
The bill criminalises the possession and disclosure of classified information and prescribes sanctions ranging from a fine to 25 years in prison.
The opposition, civil society organisations, the media and Cosatu have pleaded for a public interest defence to balance the need for secrecy with the constitutional imperative for openness.
Such a clause would allow whistle-blowers and journalists who disclosed classified information to argue in court that they had acted for the public good.
In a year of debate in and outside the legislature, the ANC made several far-reaching concessions, but refused to budge on this matter.
On Friday, the State Security Department, which guided the drafting process, said allowing such a defence would be “to shred the bill even before it becomes law”.
The new law will repeal apartheid-era legislation dating from 1982.
Amid public pressure, the ANC agreed in recent months to restrict the power to classify information to the intelligence and security agencies and to limit the definition of national security as cause for classification. – Sapa