In a letter sent to Zuma this week, she wrote: “It is unclear whether you have referred only sections 42 and 45 of the bill back to Parliament or whether there are other sections of the bill which you have constitutional reservations about.”
Mazibuko added: “We request that you provide clarity on this matter, so that we may begin the processing of the bill accordingly.” Zuma last week said he believed the bill would not pass constitutional muster and singled out those two sections as problematic.
His letter to National Assembly Speaker Max Sisulu, referring the bill back to the legislature, said he was doing so “insofar as sections of the bill, in particular sections 42 and 45, lack meaning and coherence, consequently are irrational and accordingly unconstitutional”.
This has prompted speculation as to whether the review would be confined to those sections, or whether there was scope for further changes to a bill that has met with more sustained popular protest than any other in the post-apartheid era.
Democratic Alliance MP Dene Smuts, who was involved in the drafting process and will serve on the ad hoc committee reviewing the bill, said the president’s intentions were not clear from the letter, which posed a constitutional problem.
Zuma invoked section 79 of the Constitution when he sent the bill back to Parliament. However, parliamentary joint rule 203 stated that in such an instance, the legislature could only concern itself with the sections of the bill the president referred for reconsideration.
“There is a constitutional problem because the president cannot send something back in vague terms,” Smuts said. “We can only look at what he referred back. It is not clear what he meant and he must say what he means.”
Smuts and African Christian Democratic Party MP Steve Swart wrote to Zuma after the Assembly passed the bill in April and pointed out that section 45 had been rendered meaningless, and in their view unconstitutional, by a punctuation error.
The section crucially seeks to criminalise wrongful classification of information, and was seen as a hard-won safeguard against the potential abuse of the legislation to cover up state wrongdoing. But the two opposition MPs argued that the omission of a full stop after a sub-clause had effectively rendered it void.
“The result of this drafting error is that the amendments which would otherwise in our publicly stated view successfully have addressed the most contentious issue in this bill, namely the limitation of the rights to information and free speech, are now rendered inactive,” they said.
Activists who have fought against the passage of the bill for three years have expressed hope that the president’s letter would open the door for a comprehensive rewrite. Their objections revolve around more provisions than those Zuma singled out as cause for review, notably the absence of a public interest defence in the bill.
This issue was singled out by veteran human rights lawyer George Bizos last week. He said it remained one of several fundamental flaws in the new official secrets legislation. “We want to remind people that the two sections don’t change the fact that the bill is deeply flawed,” he said.
The ad hoc review committee is expected to start its work next week, and has been given until October 31 to complete it. Mazibuko’s office said she was still waiting for a response from the presidency.