In a statement of 25 April 2013, following passing of the Bill in the National Assembly, the Office of the Chief Whip of the African National Congress (ANC) said that the party remained unshaken in their conviction that this Bill would pass constitutional muster. In a further statement of 28 April, the Chief Whip asserted: “As the majority party in this institution, we are not losing any sleep regarding the threat to challenge the constitutionality of this Bill in the Constitutional Court. This quality draft legislation that we have today can pass the constitutional muster any day.” We welcome the President’s independence of mind, evidently based on legal principle, in disagreeing with the ANC in this regard.

Parliament must now reconsider the provisions of the Bill and, in doing so, will hopefully bear in mind the constitutional and other concerns raised by the people who elected them to represent their views. If, after reconsideration, the Bill does not fully accommodate the President’s – and by implication the peoples’ – reservations, the President must, in terms of section 79(4) of the Constitution, refer the Bill to the Constitutional Court for a decision on the constitutionality of its provisions.

In this regard, the Constitution calls for an open and democratic society in which the government is based on the will of the people – although Parliament, in this instance, may not necessarily have given effect to the concerns of the people as expressed during public hearings and consultations. Section 1 of the Constitution requires accountable and transparent governance as foundational values of a multi-party democracy. Moreover, the Constitution expressly guarantees the right to access information – without which accountability and openness remain nothing but words. The Cabinet’s reliance – incorrectly so – on the National Key Points Act to restrict access to information regarding spending of taxpayers’ money on, among others, the President’s private residence at Nkandla, is a sound and recent example of how it becomes impossible to hold a government accountable for its actions and decisions without access to the relevant information. 

Nevertheless, any country and government must, of course, be able to protect certain information in its national interest and in the interest of the privacy of individuals. Consequently, the Constitution allows for permissible limitations of otherwise guaranteed rights. Accordingly, the Promotion of Access to Information Act- which gives effect to the right to access information in terms of section 32 – strikes a balance between the right to access information and a duty to protect certain information. The Bill must therefore be guided by the principles and provisions of the Constitution and the latter Act, and not by a separate and parallel set of criteria informed by “national security”, as currently proposed in the Bill.

by Adv Johan Kruger, Director: Centre for Constitutional Rights

[Photo Source: Daily Maverick]