Hello Secrets, our old friend

On Thursday, the Right2Know campaign, which has been the most outspoken civil society voice lobbying against the bill’s passing, held vigils outside Parliament and Luthuli House before Parliament’s afternoon plenary session commenced. It was hoping to send a last message to MPs that if the bill were passed, it would be greeted with an outcry. City Press also sent a warning, blacking out its website homepage for the day to visually represent the stifling effect that the newspaper feared the bill’s passing would have.

Critics argued that although the current bill was a drastic improvement on the first draft, it was still less than desirable as a piece of legislation. R2K had consistently urged members of the parliamentary committee responsible for working on the bill to include a full public interest defence, as is the case in other countries, in order to protect journalists, whistleblowers and activists. The organisation argued that it was unacceptable that a person disclosing classified information – such as corruption – could be charged with “espionage” and “hostile activity” without the state needing to prove that the accused person intended to threaten national security. In the final version of the bill, the punishment for such whistleblowers can still stretch to up to 25 years in jail.

In a statement released before the National Assembly vote, the South African National Editors’ Forum (Sanef) said that the amendments to the bill “have improved the proposed legislation in important ways, but they do not go far enough. The bill still has the potential to be used as an instrument of secrecy in a democracy that can only thrive in a climate of openness.”

Nobody seriously expected the bill not to pass. In November 2011, the ANC ordered a three-line whip on the vote (compelling ANC MPs to vote in favour of it), but it emerged afterwards that MPs Ben Turok and Gloria Borman had abstained, leaving a final tally of 229 in favour of the bill, 107 against and the two absentions. This time around, however, Turok said in advance that he would be voting in favour of the bill.

The Mail & Guardian reported that Turok admitted he had not read the full version of the completed bill; and therefore based his assessment on “press reports and discussions with colleagues”. Turok said that he had been assured by his colleagues that the changes to the bill “are qualitative, not superficial”. He was not “wholly satisfied”, he said, but understood that it was likely that the bill would end up in the Constitutional Court.

“It is clear that the parliamentary process has run its full course and that the relevant committees are exhausted,” Turok said. “I therefore feel it is time for others to take up the debate, and rely on the good judgment of our top lawyers to decide.”

Introducing the bill to Parliament on Thursday, State Security Minister Siyabonga Cwele was at pains to dwell on how much the bill had changed, and what a vital role it would play, including in terms of “improv[ing] the security of the republic from attempts at making it a banana republic”. In the final version of the bill, Cwele said, whistleblowers are “even more protected”. Cwele stated that by all measures, “this bill now fully addresses all legitimate concerns raised by the public.” The ANC is a “caring government”, Cwele said; and any differences of opinion that remained on the bill were a question of mere “policy preferences” as opposed to “constitutional concerns”.

ANC MP Cecil Burgess, who chaired the ad hoc committee which worked on the bill, launched into a scathing attack on opponents of the bill. “This bill has a tendency to seriously affect the emotions and thinking of reasonable people,” Burgess said. “They start to behave funny and say strange things.” At certain points Burgess seemed on the verge of tears, which he acknowledged by saying: “This is how this bill has touched some of us.”

Burgess said that the ANC could not be accused of failing to listen to the voice of the people. “We made so many changes that this bill is now like a newborn child,” he said; and later: “This is a born again bill”. Burgess scoffed at the idea that the ANC would resist a legal challenge to the bill. “The threat of a legal challenge to the constitutionality of the bill is a right,” he said. “Why must the ANC be scared? There’s no need to be scared of the Constitution. But don’t use it as a threat.” He also claimed that he had received anonymous phonecalls, threatening his life and the lives of his family, from opponents of the bill.

From the opposition ranks, Lindiwe Mazibuko was in defiant mood. “The fight is not over,” she said. Paying tribute to the efforts of civil society and opposition parties, Mazibuko said that they “refused to back down because we knew the dangers that the bill presented.” She suggested that the Secrecy Bill was just one of a growing number of measures taken by the ANC government to try to limit the media’s access to damaging information, citing the cover-up of the Presidential Handbook, the secrecy around Nkandla and the circumstances around the events at Marikana as other examples of a slide towards “a revived securocrat state”.

In addition to the lack of adequate protection for whistleblowers, Mazibuko also insisted that the bill was unconstitutional because it attempted to legislate on provincial matters. If the bill was passed, she said that the DA would petition President Jacob Zuma to send the bill back to the National Assembly for scrutiny. If this failed, the DA would lobby for the law to be referred to the Constitutional Court. Mazibuko said she knew that there were MPs in the ANC ranks “who know in their hearts that this bill, as it stands, is unconstitutional. The question is, will they stand up and be counted?”

Possibly the most emotional and dramatic plea made for MPs to vote against the bill was delivered by idiosyncratic IFP MP Mario Ambrosini, who explained that he was in ill health but had come to Parliament “heavily medicated to plead… [with MPs] to follow the dictates of your conscience”. Ambrosini said he had been stopped in the corridors by MPs of all stripes who told him that they knew the bill was bad news. “This is where our hard-fought democracy perishes!” Ambrosini thundered. “Before your conscience, what will you do about it?”

The answer was: not much. When the vote was tallied, it passed by a landslide: 189 votes in favour as compared with 74 votes against it. There was one abstention, who was said to be UDM MP Siza Ntapane. In a bizarre twist, it emerged that the ANC’s chief whip, Mathole Motshekga, had voted against the bill. But the ANC was quick to issue a statement announcing that the vote was a “technical problem with Parliament’s voting machines” (which sounds suspiciously like a euphemism for: “he pressed the wrong button”). After the vote was corrected, the final tally stood at 190 yes votes, 73 no, and one abstention.

What was noteworthy, however, was how poor the total MP turnout was – with a whopping 136 MPs absent for the vote. This means that 73 fewer MPs arrived to cast their votes than did so at the last vote on the bill, in 2011. Questions deserve to be asked about where the missing MPs were at the time, though it is also possible that there are some positions which are currently unfilled.

After the bill was passed, the ANC released a self-congratulatory statement lauding what it described as “probably one of the most consultative bills since the advent of democracy in 1994”. The ruling party also said it remained “unshaken in our conviction that this bill will pass the [sic] constitutional muster”. Cosatu had previously expressed its concern that a number of “fundamental problems” remained in the bill, and had called on the National Assembly to refrain from passing the bill. Clearly, this plea had zero impact on its alliance partners.

There are now three possible fates for the bill. When it arrives on Zuma’s desk, he may simply sign it off, but if he has concerns about the bill’s constitutionality, he can either refer it to the Constitutional Court or back to Parliament. If he fails to do that – as seems likely – Parliament can, with one-third support, compel the bill to be brought before the Constitutional Court by petition. (This would require the support of virtually every single member of the opposition caucus.) The third option is that once the bill gets signed into law, anyone can approach the high court to take on the bill, though this legal route will be far lengthier.

R2K’s national coordinator, Murray Hunter, told the Daily Maverick on Thursday evening that “we all knew this day was going to come. To say the least, we are unhappy with the final draft of the bill, and despite some vital amendments, we feel it falls short of our constitutional requirements.”

But Hunter was uncowed in the face of Thursday’s setback. “This is just the end of the beginning,” he said. “There’s still much work to be done.” DM