Protection of State Information Bill: The referral, the debate, and the process

On 12 September 2013, President Zuma referred the Protection of State Information Bill back to Parliament “for reconsideration insofar as sections of the Bill, in particular Sections 42 and 45, lack meaning and coherence”. The letter that the President wrote to the Speaker stated that clause 42 referenced the incorrect sub clause. Secondly, clause 45(1) stopped short of creating an offence. This questioned the constitutionality of the Bill, and the Bill was then referred back to the Ad Hoc Committee on the Protection of State Information Bill.

The controversial Bill, which seeks to regulate the classification of state information, has sparked even more debate, as opposition parties argued that the President’s letter was vague and did not specifically state that the Committee was limited to only amending clauses 42 and 45. They disagreed with the Chief State Law Adviser that the Committee only had to deal with clauses 42 and 45. They pointed out that the President’s letter clearly spelt out in terms that were inclusive and not exclusive: “In particular, sections 42 and 45”. The DA and ACDP Members proposed that the Committee seek clarity from the President before they proceed with amending the Bill. The IFP pleaded that the entire Bill be deliberated on clause by clause. ANC Members disagreed and moved to proceed with deliberations on clauses 42 and 45, arguing that the President’s instructions were clear and that they should proceed with the task at hand. A vote had to be taken and the Committee proceeded with deliberations on only clauses 42 and 45. The Chief State Law Adviser added that when checking the Bill again, three typographical errors had been detected, and it was in the power of the Committee to change these as they were technical changes.

The opposition opposed the process even though they welcomed, in principle, the amendments to sections 42 and 45. During the meeting of 10 October 2013, the IFP raised a request that, in line with the NA Rules, the minority views of the Committee should be accommodated in the Committee’s Report. ANC Members had a different interpretation and noted that the Report differed from the minutes of the Committee, and said it was only appropriate to note the views of a “Committee” and not of “parties”. The majority of Members believed that the Committee Report should be accepted as drafted, but were eventually persuaded by the Chairperson to include a simple statement that the DA, IFP and COPE recorded their objections, without stating why – this would be left to the parties to elaborate upon in the National Assembly.

However, the Speaker referred the Committee Report back to the Committee saying that the NA Rules required the inclusion of a minority report. This was after a complaint was lodged with the Speaker by the IFP. Thus on 29 October 2013, the Committee convened again to consider a revised Committee Report. After some heated discussion on both the length and content of the IFP viewpoint, the Chairperson obtained consensus from the majority of the Committee that it would be stated, in addition to the views of the DA, ACDP and COPE, that the IFP took the position that, as set out in section 79 of the Constitution, rather than merely addressing the concerns of constitutionality, the Committee should have allowed the review of the Bill beyond a few chosen grammatical matters.

The Committee met the next day to finalise the revised Committee Report. They also considered technical inconsistencies or errors that were picked up in the Bill. Corrections were made to clauses 1, 3, 7, 12, 15, 18, 20, 26, 51, 52, 53, and 54. The DA and ACDP noted that these corrections made no difference to the substance of the Bill. In principle, they opposed the technical corrections being effected under this referral process.

In its final meeting on the Bill (8 Nov 2013), the Chairperson informed Members that the Committee Report was the same as the one considered on 30 October 2013; however, a paragraph was added at the end of the Report to include corrections to technical errors in the Bill identified by the Chief State Law Adviser. The Report was adopted and the National Assembly approved the Bill on 12 November 2013.

For more information, please see: http://www.pmg.org.za/report/20131108-revised-committee-report-protection-state-information-bill-minister-state-security-in-attendance