The members of the International Press Institute, meeting at their 63rd Annual General Assembly during the IPI World Congress on April 14, 2014 in Cape Town, South Africa, adopted by unanimous vote a resolution calling on President Jacob Zuma of South Africa to submit the Protection of State Information Bill, also known as the “secrecy bill”, to the Constitutional Court for review.
IPI members said the legislation – as adopted by the National Assembly and sent to the president on Nov. 12, 2013 – could hamper reporting and access to information if it becomes law. They expressed concern that the legislation lacks a public interest defence as well as sufficient protections for whistleblowers. The members further agreed that the legislation, as written, vests too much power in the hands of the minister of State Security to determine what information can be classified, giving the minister power to bury information that is potentially embarrassing to the government.
The Constitutional Court, under Section 167 of the South African Constitution, has the authority to rule on the constitutionality of parliamentary legislation and its decisions are binding. IPI members said that a ruling on the constitutionality of the Protection of State Information Bill would set the stage for reconsideration of the legislation by Parliament to address concerns about its impact on press freedom and access to information.
IPI members noted that President Zuma, citing constitutional concerns, rejected an earlier draft of the legislation and that Parliament has taken steps to improve it, including adding provisions requiring prosecutors to prove unlawful intent in disclosing information before an individual may be convicted. However, the members agreed, further improvements are needed if the draft law is to shield journalists and whistleblowers from wrongful prosecution that could have a chilling effect on press freedom and access to information.
IPI members therefore urged President Zuma to again use his prerogative to request the Constitutional Court to review the “secrecy bill” to determine if it passes constitutional muster. Doing so would send the message that this and future South African governments will not hesitate to engage in a comprehensive legal review of legislation in order to protect the freedoms of the press and expression, as well as freedom of information.