The ANC in Parliament said on Sunday its planned “consultation process” on the Protection of State Information Bill would unfold over the next fortnight, even though the bill is to be debated in the National Assembly on Wednesday.
But Moloto Mothapo, spokesman for ANC chief Mathole Motshekga, was unable to confirm a City Press report which quoted Motshekga as saying the ANC was considering inserting a public interest defence clause in the bill.
Deputy President Kgalema Motlanthe, at a meeting with the Press Gallery Association last week, suggested there could be a “meeting point” over providing for a public interest defence.
This would allow journalists and whistleblowers to argue before a court that publishing classified information was justified in terms of the public’s right to know. The bill has been pending on the National Assembly’s order paper for the past eight weeks after the ANC shelved a scheduled vote at the last minute.
At the time, Motshekga said there was a need for ANC MPs to consult more widely, signalling the start of a parallel process that some critics questioned the legitimacy of and warned could undermine Parliament.
It was unclear on Sunday how the consultations would dovetail with the legislative process.
A number of bodies have, or intend to, submit fresh submissions on the bill to deal with concerns that include, but are not limited to, the exclusion of a public interest defence.
Mothapo said the ANC had concluded a round of inter-parliamentary caucuses – bringing together MPs, MPLs and councillors – last week, when they were briefed extensively on the bill.
This was so that “when they go to the public they are well-informed”.
A number of MPs had already held meetings with communities, he said.
Mothapo could not say whether the National Assembly would vote on the bill or whether a vote would be taken to set up a new committee to process it further.
The ad hoc committee that steered it to the initial, planned vote ceased to exist once it was tabled in the National Assembly.
Mothapo suggested that amendments to the bill could be effected once it moves to the National Council of Provinces.
The DA’s Dene Smuts suggested the ANC’s consultative process was a “farce” and said that it had “collapsed”.
Smuts said the ANC could have had the input of all the regional People’s Assemblies and Provincial Legislatures “if it had heeded our call to tag the bill as affecting the provinces in terms of Section 76 of the constitution”.
“This triggers an elaborate legislative mechanism under which the public is consulted and mandates are sought from and brought back to the provinces,” Smuts said.
The tagging issue remained one of the constitutionally problematic aspects of the bill.
“Intelligence is a national competence, but the bill affects provincial archives for declassification purposes, and provincial archives are an area of exclusive provincial legislative competence.
“The Constitutional Court has declared at least one law (the Communal Lands Rights Act) null and void for the reason that it should have been legislated under Section 76,” Smuts said. - Political Bureau