English

Siboniso Prosper Welcome Luthuli

doi:10.5897/jmcs2016.0498

Abstract

Whilst the African National Congress (ANC, 2011) at the helm of the current South African government may have succeeded towards the end of 2013 in using its majority voting clout inside the country’s national parliament to forcibly push through the passing of the controversial and now infamous 2010 Protection of State Information Bill / Secrecy Bill, and thereafter declared it tame enough and ready to be gazetted into the country’s existing panoply of statutes, the reality of the Bill’s constitutionally-flawed and visibly-draconian state as it awaits to be enacted into law remains evident in its final version.  Using a descriptive analytical approach, this study undertakes a critical discussion on the aforementioned version of the Bill in order to demonstrate how its architects, the state’s team of securocrats and legal advisers should retrospectively be considered to have both intransigently and consistently resisted to implement a genuine redress on many of the issues which have been raised as concerns against it by its opponents and critics since 2010, thus leaving it in a state which continues to pose a variety of potential threats to the democratic civil liberty of freedom of expression enshrined in the country’s Constitution if enacted into law in its current state. In spite of a somewhat less-sanguine picture which is painted in the article about the Secrecy Bill, a positive conclusion, is however, reached to effect that various safeguard mechanisms contained in the country’s Constitution should ultimately be considered to provide adequate insulations against any future attempt(s) by democratically-elected governments in South Africa to arbitrarily enact any piece of legislation, including the Secrecy Bill, without facing stiff opposition and criticism from the country’s media and civil society.   Key words: Secrecy bill, Adhoc committee on the secrecy bill, classified state information, democratic civil liberties, freedom of expression, threats to freedom of expression, constitution-flouting, state securocrats, ANC-led government, and sufficiently-independent, publicly-accountable bodies.

Highlights

The fierce debate(s) which it has generated since it was re-tabled before the South African National Assembly in August 2010, it is at times tempting to imagine that President Jacob Zuma‟s administration, his team of securocrats and legal advisers would have either relented or capitulated to the nationwide calls which have since been made for a comprehensive overhaul to be conducted on it
Against the background of the analytical discussion on the Secrecy Bill provided under the previous heading earlier, the findings outlined below have been extrapolated in relation to each one of its selected chapters for scrutiny with a view to validating the hypothesis about it posing a potential threat to the democratic civil liberty of freedom of expression in South Africa: 1. Chapter 3 of the Bill entitled „Policies and Procedures‟ has been found to pose a potential threat to the democratic civil liberty of freedom of expression on three aspects
Any meaningful critical discussion on the subject of the alleged „fanged‟ nature of the final version of the Secrecy Bill, and the variety of threats which it should still be considered to potentially pose to various democratic civil liberties which are enshrined in the country‟s Constitution as it awaits to be signed, and enacted into law necessitates that cognizance is taken of the fact that the Bill in itself is first and foremost not a would-be piece of statute which was primarily intended to regulate the affairs and activities of the press / media as they relate to the latter‟s freedom and right of access to state information per se

Summary

Introduction

Even though some of the Bill‟s critics such as Jacobs of the Human Rights Watch (2013), Smuts of the Democratic Alliance (2013) and De Vos (2013) among others, have acknowledged, albeit with notable reservations, that substantial improvements have been made on it since the row and debates around it began and before it was subsequently passed by the country‟s national parliament in 2013, a close reading of the Bill‟s purportedly final version points to a different reality. The reality in question is one in which a variety of potential threats to some, if not many, of the democratic civil liberties, especially freedom of expression, which are enshrined in the country‟s constitution, and many of which have been consistently fingered as concerns by some members of the civil society, opposition parties and the media remain a conspicuous presence in some of the chapters contained in the Bills‟ final version. Under clause 16 of the Bill of Rights which forms Chapter 2 of the South African Constitution, the civil liberty of freedom of expression mentioned earlier is said to include, inter alia, the freedom of the press and other media, as well as the freedom to receive or impart information and ideas

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