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Passing the POSIB to the courts: is it selling out?

Sipho Hlongwane is a writer and columnist for Daily Maverick. His other work interests also include motoring, music and technology, for which he has some awards. In a previous life, he drove forklift trucks, hosted radio shows, waited tables, and was once bitten by a large monitor lizard on his ankle. It hurt a lot. Arsenal Football Club is his only permanent obsession. He appears in these pages as a political correspondent.

Was ANC MP Ben Turok correct in saying it is time for the courts to take up the Protection of State Information Bill? Politically, yes, but even he admitted he was not happy with what he passed with his own signature. Did he sell out?

Last week, the national assembly voted to pass the Protection of State Information Bill (POSIB) by 189 votes in favour, 74 against and one abstention. The bill has been the subject of much controversy and opposition from civil society groups and some political parties, for the great powers it gave politicians to classify information, but mostly for the draconian punishment it meted out to people who leaked the secrets. After much debate, and rewrites, a modified version of the original bill was passed.

However, groups like Right2Know, the South African National Editors’ Forum and the Democratic Alliance have said that the bill still falls short of constitutional prescripts, and a challenge at the Constitutional Court is a possibility if the president does not choose to refer the bill himself before signing it.

R2K said that while clauses overriding the Promotion of Access to Information Act have been removed, some troubling ones remain, such as loopholes in the definition of national security, and making the simple possession of secret information a crime. The overall feel of the new law is that is seeks to stifle press freedom and the right of the public to know by criminalising most types of leaks, even if they serve to expose corruption or wrongdoing by the government or a public official.

The African National Congress has, to its credit, listened to the complaints about the bill, and has taken some steps towards making it more Constitution-friendly. But there was a stage when it seemed unready to brook any dissent on the bill. ANC MPs Gloria Borman and Ben Turok famously did not vote for the bill when it appeared on the floor in 2011, in defiance of their colleagues and the line given by the party whip.

This time around, Turok chose to vote for the bill. In a statement he released before the voting started, he said, “My previous action was meant as a protest against what I considered an obnoxious bill. A protest is just that; it is not more than that. An individual action has limited effect. Because of the tortuous passage of the bill through the NCOP, I have been unable to track all the changes… I therefore have to some extent make a judgement on the basis of press reports and discussions with colleagues.

“I have been briefed by colleagues on the changes and am assured that they are qualitative, not superficial. Nevertheless, I am not wholly satisfied but understand that the bill will certainly land up in the Constitutional Court,” Turok said.

While Turok’s thinking on the subject may remain his secret forever, he has made it clear that he is not passing the bill because he is satisfied that it is a democratic and constitutional one. Given that he (a veteran of the party, no less) was subjected to a disciplinary process following his rebellion in 2011, it isn’t difficult to imagine that the at least some part of the party’s wrath had a bearing on his current decision-making.

In any case, should Turok be thought of as a sell-out for passing a bill he still has some issues with?

Politically, he did the right thing. He raised his objection in the right forum, and it was a politically expensive one. The debate has been had over and over, and in many public forums. And yet, the democratically elected majority party wishes to pursue this bill to the end. At what point is the ruling party supposed to just be allowed to get on with it, no matter how objectionable some may find it to be?

Turok made the same point. He said, “I am not wholly satisfied but understand that the bill will certainly land up in the Constitutional Court. It is clear that the Parliamentary process has run its full course and that the relevant committees are exhausted. I therefore feel it is time for others to take up the debate, and rely on the good judgement of our top lawyers to decide.”

From a political perspective, I don’t know that he could have taken a better position. If the bill sucks, send it to the courts. End of story.

I am sympathetic to the view that the constant caterwauling over the POSIB smacks of distrust in our judicial system. In other words, if we are so terrified of the consequences of this bad bill, are we not actually saying that we do not believe that the courts have the wisdom to scrap it if it is unconstitutional?

I am of the belief that an elected party must be given the space to fulfil its mandate, whatever that is. The courts are there to act as referee, but really, the people who must choose what kind of government they want is the voters. And if Turok’s party decides to go in a direction he does not personally like, who is he to bring his feelings into it?

Cedric Gina, the president of the National Union of Metalworkers of South Africa, made the same point (albeit less delicately) last week with respect to labour brokering. The union wants it banned outright, while the ANC is trying to balance competing interests in the matter. It does not understand why the party doesn’t just enact the law and then leave it to the courts to decide on constitutionality.

And yet…

We have the case of Rob Borbidge, the former premier of Queensland, Australia. In recent days an interview done by The Daily Show with him has gone viral. In it, the Australian politician claims that his decision to support gun control after the 1996 Port Arthur massacre cost him the re-election in 1998.

“I took the stand, I was prepared to face the political consequences, and we delivered gun control,” he said to John Oliver. “We paid a high political price but we did the right thing.”

In Borbidge’s case, the results of not doing what he thought was right were more important than his political career.

I’m sorry, but no ANC member of Parliament can say with a straight face that they can happily live with the unintended consequences of the bill such as the stifling of corruption busting by the press. Not after they have been told – time and again – that this would happen.

If they do believe that the POSIB’s adverse effects are worth it, then the ANC should stop wasting our time and admit that the point of the bill was to prevent anyone from ever finding a government official guilty of corruption ever again. DM


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