Note to editors: The following statement was distributed at a press conference held today by Leader of the Democratic Alliance Helen Zille, DA Parliamentary LeaderLindiwe Mazibuko MP, DA Chief Whip Watty Watson MP and DA Federal Chairperson Dr Wilmot James MP.
South Africa witnessed an epoch-defining moment this week. Black Tuesday will one day be seen as a turning point in our democracy.
Whatever happens in the months ahead, Tuesday will be remembered as the day that the ANC voted against media freedom - a cornerstone of our democracy.
Some people have resigned themselves to a future under a Protection of Information Act, with the censorship implications we thought had died with apartheid.
The Democratic Alliance has not given up. Far from it.
We have fought against the Bill since its inception and we will keep on fighting. This legislation has no place in a free and democratic South Africa.
Today, we share with you our plan to fight the Secrecy Bill:
1. Private meeting with President Zuma
I have written to President Jacob Zuma this morning to request an urgent meeting to discuss the immediate as well as the far-reaching implications of this Bill for South Africa.
News of the vote in the National Assembly has been covered worldwide. Human Rights Watch, for example, described it as "a blow to freedom of expression and democratic accountability."
The response of the international currency markets was immediate. The rand slumped to a 30-month low, which analysts have attributed to growing international reservations about South Africa's future.
Besides its implications for freedom in the future, the President must recognise the Bill's impact on public and investor confidence right now.
2. The launch of an e-mobilisation campaign
In the coming weeks, the DA will launch an e-mobilisation campaign to increase pressure on the ANC to withdraw the Bill in its current form.
We have a network of millions of South Africans throughout the country. Through our social networks and our people on the ground, we can reach in the region of 15 million people.
Through these networks, we will distribute information about the bill, and how it affects people's rights. And we will mobilise people through SMS, email and social networks such as Twitter, Facebook and Mxit to:
- Make a call to the toll-free presidential hotline (17737) to voice opposition to the Bill
- Download and email a letter to the President setting out the case against the Bill
- Sign an online petition against the Secrecy Bill
- Organise ‘flashmobs' of people with black gags at high-profile public events to demonstrate opposition to the Bill.
3. Legal advice on the validity of the Bill
The DA has argued from the outset that the Bill should not have been tagged by the Joint Tagging Mechanism (JTM) as a Section 75 Bill (defined in the Constitution as an "ordinary Bill not affecting the provinces").
Instead, because the Bill has implications for provincial archives (which Schedule 5 of the Constitution determines is an exclusive competency of provinces), it should have been tagged as a Section 76 Bill (an "ordinary Bill affecting the provinces").
This is a crucial distinction, and could well be the Bill's undoing.
Incorrect tagging of the Bill would render it unconstitutional, and therefore open to legal challenge. In May 2010, the Constitutional Court declared the Communal Land Rights Act (CLARA) unconstitutional on similar grounds. This sets a legal precedent for a Constitutional Court challenge on the basis of the Bill's incorrect tagging.
Since the Bill will impact the Western Cape's provincial archives, I have, in my capacity as Premier, instructed the province's lawyers to prepare a legal opinion on the options available to challenge the validity of the Bill on these grounds.
4. Amendment of the Bill in the National Council of Provinces (NCOP)
Today on the order paper of the NCOP, the Protection of Information Bill will be referred to an Ad Hoc Committee for deliberation. This Committee must furnish a report on its findings and recommendations for consideration in the House by
8 March 2012.
We do not believe that this allows enough time for adequate public participation. Elza van Lingen, DA Leader in the National Council of Provinces, will propose an amendment to extend this deadline to allow for extensive public hearings.
The DA's parliamentary team will ensure that our members on this Committee take the following steps:
- Push for the inclusion of a series of amendments to the Bill. Some of these amendments will be identical to those we put forward in the National Assembly Ad Hoc Committee on the Protection of Information Bill, such as the public interest defence. We believe that, in particular, the sections of the Bill pertaining to almost all offences (such as the possession and disclosure of classified information) require further amendments; and
- Insist that a full public participation process takes place.
In the debates that follow in the NCOP, I will personally put forward the DA's case as a Special Delegate to that House.
5. Petition the President in terms of Section 79 of the Constitution
If the DA's amendments in the NCOP are rejected, and the Bill is sent to the President for assent, we will petition the President to refer the law back to the National Assembly in terms of Section 79(1).
Section 79(1) reads:
The President must either assent to and sign a Bill passed in terms of this Chapter or, if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration.
Our petition will include a legal opinion setting out the constitutional problems with the Bill, such as its incorrect tagging as a Section 75 Bill. It will also set out its violation of key clauses in the Constitution, including:
- The preamble, which talks of a "democratic and open society";
- The founding provision of "Responsiveness and openness";
- The Bill of Rights, which guarantees freedom of expression, including freedom of the press and the freedom to receive or impart information or ideas; and
- Section 32, which guarantees the right of access to any information held by the State.
6. Lobby MPs from other parties to support a Section 80 petition
The Section 80 petition process is the final option, should all other avenues have been exhausted.
Section 80(1) of the Constitution states:
Members of the National Assembly may apply to the Constitutional Court for an order declaring that all or part of an Act of Parliament is unconstitutional.
Such an application must be supported by at least one third of the members of the National Assembly, and be made within 30 days of the President assenting to and signing the Act.
The DA's Parliamentary Leader Lindiwe Mazibuko will initiate a lobbying campaign to mobilise other Members of Parliament to join the DA in this application. We believe that it is possible to acquire the 134 signatures needed to make an application to the Constitutional Court.
Collectively, the combined opposition holds 136 seats in the House - two more than is required to lodge a Constitutional Court application through the Office of the Speaker. We will also lobby those in the ANC who we know have expressed private (and in some cases public) misgivings about the Bill.
7. Promoting transparency and openness where the DA governs
Should the Bill be passed in its current form, the DA will resist its implementation where it governs as far as possible. Transparency, openness and accountability will remain hallmarks of DA governments.
We will continue to push for maximum transparency as we have done in the City of Cape Town and the Western Cape. In Cape Town we were the first local government to establish a Standing Committee on Public Accounts (SCOPA). We also opened up Mayoral committee meetings and tender adjudication committees.
In the Western Cape we have published our projects ‘dashboard' online so that stakeholders, the media and members of the public can track progress on provincial government projects.
We have also made the new Western Cape ministerial handbook publicly available on the provincial government website so that citizens can hold the Provincial Executive accountable for the way in which they spend public money.
The Western Cape Government has also re-launched its tender website where members of the public can view the details of all tenders advertised and awarded, including details of successful bidders and the amounts involved. In addition we have an open bidding system, which means we don't limit the number of people allowed to submit bids for every tender. The Western Cape is the only province that has opened the process in this way.
We will continuously look for new and innovative ways to make state information available to the public.
The DA is committed to engaging on the Bill in the National Council of Provinces. We hope that the ANC will heed the call made by all opposition parties in Parliament this week, and will allow for key amendments to be made to the Bill.
However, we are also prepared to use extra-parliamentary means to stop this Secrecy Bill, as it currently stands, from becoming law, including the legal avenues at our disposal.
In the end, a sustained increase in public pressure may be what it takes to get the ANC to withdraw the Bill in its current form. We will play our part in mobilising the South African people against the Bill.
We have not given up the fight. We invite every South African to join us in defending the open society against its enemies.
Statement issued by DA leader, Helen Zille, November 24 2011
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