Issued by Daniela Ellerbeck on behalf of the FW de Klerk Foundation on 30/08/2024

The Protection of State Information Bill has been revived by the new Parliament. This means that Parliament will now reconsider it. The Bill became infamously known as the Secrecy Bill, due to its overbroad definitions, draconian criminalisation of receiving information, the absence of a public interest defence and its application to all organs of state.

“The Bill, which aims to protect sensitive state information, has a long history and was first introduced to Parliament back in early 2010 by the then Minister of State Security, Dr Siyabonga Cwele,” says Daniela Ellerbeck, an attorney and the FW de Klerk Foundation’s Constitutional Programmes Manager.

Despite being passed by both Parliament’s houses at the end of 2013 the Bill was never signed into law. In mid-2020 President Cyril Ramaphosa sent the Bill back to Parliament for reconsideration, in terms of section 79(1) of the Constitution. He set out his concerns regarding its unconstitutionality in a letter to the then Speaker. His concerns included, inter alia, the Bill’s infringement of the rights to receive information and impart ideas and to access to information held by the state (sections 16(1)(b) and 32(1)(a) of the Constitution).

“The FW de Klerk Foundation shares president Ramaphosa’s reservations regarding the Secrecy Bill’s constitutionality. It will closely monitor Parliament’s reconsideration of the Bill to ensure it fully addresses these concerns. Of paramount importance is that the Bill must not unjustifiably and unreasonably infringe on fundamental rights or South Africa’s founding values of a responsive, accountable and open government,” states Ellerbeck