Will secrecy bill stand the test?

By on November 12, 2012

Parliament faces a formidable  test as deliberations on the Protection of State Information Bill  (POSIB) head for another deadline that  could end the negotiation on how much  transparency we impose upon our government. Against the backdrop of the state’s  protection of the detail of President Jacob Zuma’s Nkandla homestead upgrade, the last leg of this so-called secrecy bill’s passage through the legislature will, for ANC MPs at least, test the  spirit of the constitutional separation of  powers between the executive and the  legislature.

 The ad hoc committee of the National  Council of Provinces has now given itself  until the end of this month to finalise its  proposed changes to the much amended  bill tabled two and a half years ago by  the Minister of State Security, Siyabonga  Cwele.

 The draft proposes a necessary legislative infrastructure for the creation,  protection and deletion of state secrets.  Apart from a fundamentalist minority  who would like to see government operate with no secrets at all, there is near  universal acceptance that we do need a  framework for the management of secrets.

 But the draft proposed in 2010 and the  current version, which is much changed  from the original, strike terror in the  hearts of democrats in every party, including some in the ANC, who know that  all governments need checks, balances  and countervailing pressures.

 The problem from the start has been  overkill.

 A sound idea was seized as an opportunity to impose a range of restrictions on access to information that were  neither necessary for the business of  good governance nor appropriate in a  society committed, as ours constitutionally is, to freedom of information.

 The result is a bill that would make it  impossible to publish classified information in the public interest without the  risk of long imprisonment.

With Zuma’s private estate now declared a National Key Point, it likely  would be impossible under the terms of  the POSIB to publish details of what the  taxpayer has built for him, and at what  cost, without going to jail for a very long  time.

 The original draft was much improved  during months of often late-night meetings of the National Assembly’s special  committee on the bill.

Since then, it has been further improved in a similar round of hearings  and negotiations in the NCOP’s own ad  hoc committee.

 But in a last-ditch effort to exert the  will of Zuma’s increasingly furtive government, Cwele visited the committee  recently and asked members to drop  several of the improvements they had  made to the draft they received from the  National Assembly.

 Among other things, he wanted minimum jail terms reinstated as well as a  dropped clause that would protect his  secrets from release under the Promotion of Access to Information Act.

 “We are not putting undue influence  on parliament, we are just putting our  suggestions to them,” he said in response to opposition charges that he was  violating the constitutional separation of  powers and trying to bully the legislature.

The constitution gives the executive –  Zuma and his cabinet – the task of  “preparing and initiating legislation”.  Parliament has the power to “pass legislation with regard to any matter”.

Precedent and the specifics of the constitution give MPs absolute freedom to  amend legislation and the final say on  the form it will take.

 Though he has been given more opportunities than anyone else to make his  case during the long passage of this bill  through parliament’s various chambers  and corridors, Cwele does have a right to  defend his original idea.

 But in the context of a parliament  dominated by a party that loudly proclaims the supremacy of its party structures over the judgment of its deployed  members, Cwele’s renewed appeal after  the repeated rejection of his most controversial ideas looks a lot like “undue  influence”.

 The question now is whether the ANC  members who have been convinced by  overwhelming public and legal opinion  to soften the more draconian elements of  the bill will have the courage to stand by  their decisions and politely decline  Cwele’s appeal.

 Many factors will weigh on the ANC  delegates. If Cwele is perceived to be  alone in his insistence on the need for  absolute secrecy under all circumstances, MPs may stick to their guns.

But if his message comes with the  imprimatur of Zuma and his cabinet,  their decision may fall into the realm of  pre-Mangaung positioning.

 The need for tight security against media leaks is driven in the short term by  the will to protect Zuma from scrutiny  and from the possibility of renewed  prosecution on outstanding charges of  corruption and fraud.

 Kgalema Motlanthe, his most likely rival when the ANC gathers next month to  elect a leader – if he is to have one at all  – is the most powerful voice within the  ANC for moderation in the approach to  secrecy.

It is now too late for parliament to  enact the secrecy bill into law this year,  but the NCOP committee may yet be  asked to settle on a final text to send  back to the National Assembly and there  could be an opportunity to score brownie  points before the trip to Mangaung.

 MPs should, of course, do the right  thing because it is the right thing, and a  clear majority of ordinary South  Africans think that would be to write in  tight and careful provisions for the exposure of secrets in the public interest.

 But if any still wonder what is the  right thing, they need only look at the  slowly emerging truths about the massacre at Marikana and the obscene misdirection of public funds to Zuma’s personal estate to know that we cannot allow the Protection of State Information  Bill to pass in the form Cwele proposes.

 by Brendan Boyle, editor of the Daily Dispatch.

Source: Daily Dispatch

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