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PSAM requests the President not to sign the Bill into law

Date Released: Fri, 3 May 2013 11:59 +0200

Today (3 May 2013) the world is celebrating Press Freedom Day. In South Africa, the passing of the Protection of State Information Bill last week (25 April 2013) has cast a cloud over the hard-won freedoms of expression as enshrined in our Constitution. The Public Service Accountability Monitor (PSAM), part of the School of Journalism and Media Studies at Rhodes University, has sent a letter to the President of South Africa, Mr Jacob Zuma requesting him to submit the current draft of the Protection of State Information Bill to the Constitutional Court.

On 25 April 2013 Parliament’s National Assembly voted in favour of its adoption (190 votes in favour, 74 votes in opposition and 1 abstention). The Bill is currently before President Zuma who has three choices:

-          Sign the bill into law

-          Refer it back to the National Assembly for reconsideration of its constitutionality;

-          Or refer it to the Constitutional Court for a ruling on its constitutionality;

“South Africa’s current secrecy law (the Protection of Information Act 84 of 1982) is widely acknowledged as being out of date and unconstitutional. Parliament has spent the past three years drafting, debating and redrafting its replacement (the Protection of State Information Bill),” says PSAM Director, Mr Jay Kruuse.

He argues that the Bill has rightly attracted widespread criticism given its proposed powers of classification over state information and the extent of criminal consequences proposed should members of the public acquire access to protected state information.

“Many regard the Bill as unconstitutional - the Public Service Accountability Monitor (PSAM) at Rhodes University remains opposed to the Bill and has sought to ensure that it is revised to meet the requirements of South Africa’s Constitution,” he says.

“We submit that the absence of adequate provisions within the Bill pertaining to the following matters result in the Bill being inconsistent with the Constitution:

-          a full public interest defence;

-          inadequate whistle-blower protection;

 The Public Service Accountability Monitor submit that the Bill goes too far in that it permits:

-          the Minister of State Security to give classification powers to other state bodies (and junior officials) without adequate public consultation and reasons being provided.

-          severe sanctions where a person acquires protected information that has already entered the public domain.

-          Criminal sentences which are inconsistent with international practice and which will have a chilling effect on anyone in possession of protected information that should be released in the public interest.

In addressing this correspondence to the President the PSAM is mindful of section 83(b) of the Constitution which requires that you “uphold, defend and respect the Constitution as the supreme law of the Republic”.

“We are of the considered view that should you act in accordance with section 84(2)(c) this would be in the countries best interest. Such a decision would be testimony to both your commitment to the Constitution and the vital role played by our judiciary in advancing an open and democratic society,” says Mr Kruuse.

In celebrating the World Press Freedom Day, SA National Editors’ Forum (Sanef) issued the following statement: “On World Press Freedom Day we celebrate the role of the news media around the world in sustaining democracy, fighting tyranny and enriching public life. We also remind ourselves of the many ways in which that role is imperiled.”

“Journalists, civil society groups, and trades unions are united in opposition to important aspects of the Protection of State Information Bill, which in its current form imposes harsh prison sentences on anyone who discloses classified state secrets.”

“Without the insertion of a clause protecting from prosecution those who publish such secrets in the public interest – in other words to reveal serious wrongdoing – and other important modifications, the bill is a danger not just to press freedom, but to democracy,” says the statement.

“As South Africa commemorates another World Press Freedom Day, this day will no doubt focus minds on Parliament’s decision to pass the controversial Protection of State Information Bill, or the Secrecy Bill. It will now be forwarded to the President for signing,” Prof Jane Duncan, Highway Africa Chair of Media and Information Society argues in her SACSIS column.

“There are still many fundamental problems with the Bill, but it is greatly improved from previous versions. These improvements have shown that the most secretive sphere of government – the security cluster – is susceptible to public pressure,” she says.

“This Bill, coupled with important changes to a related Bill, the General Intelligence Laws Amendment Bill, attest to the power of an united and organized civil society to resist attempt to securitize the South African state,” added Prof Duncan.

The United Nations General Assembly declared May 3 to be World Press Freedom Dayto raise awareness of the importance of freedom of the press and remind governments of their duty to respect and uphold the right to freedom of expression enshrined under Article 19 of the Universal Declaration of Human Rights and marking the anniversary of the Declaration of Windhoek, a statement of free press principles put together by African newspaper journalists in 1991.

Open letter to the President

Photo: Jay Kruuse