Rhodes University’s Public Service Accountability Monitor (PSAM) has challenged chief state law advisor Enver Daniels’s contention that the draft Protection of Information Bill, now before Parliament for a second time, will not fall foul of the Constitution.
“While the PSAM recognises the need for legislation to protect state secrets and specific sensitive information, we share the view held by many that the… bill, as currently framed is unconstitutional,” the PSAM’s Jay Kruuse and Derek Luyt said on Wednesday.
Daniels believed otherwise and had assured Parliament’s ad hoc committee on the bill on Tuesday that “none of the submissions have convinced us that the provisions of this bill are unconstitutional”.
“We don’t think the provisions are too wide. We think this makes it easier to access information, though I know that is not a widely held view,” Daniels had said.
In a joint statement, Kruuse and Luyt said, regarding the absence of a public interest override clause, Daniels was reported to have explained he had no policy directive from the committee or the executive to include such a clause.
“The PSAM submits that such a clause is required having regard for the Constitution and the Promotion of Access to Information Act,” Kruuse and Luyt said.
Daniels’ assurances were made amid calls that the bill be withdrawn and redrafted.
Committee chairperson Cecil Burgess had rejected these calls, describing Daniels as “very informed” and that scrapping the bill would be “disrespectful” to his office.
Kruuse and Luyt said: “So must we accept Daniels assurances in this regard? Is his opinion informed by a well considered legal opinion which draws upon authority to sustain his argument?
“To date the office of the state law advisor has not placed any publicly available document before Parliament which responds meaningfully to detailed concerns that the current bill is unconstitutional.”
Under these circumstances, the PSAM called on Daniels and his office to address Parliament in writing on this key aspect.
This would afford them the opportunity to respond meaningfully to the concerns raised, while also assisting Parliament with its ongoing deliberations.
“It may also enable the Constitutional Court to consider all relevant submissions on this aspect should President [Jacob] Zuma decide to refer the bill to this court for a decision on its constitutionality, as provided for in terms of Section 84(2)(c) of the Constitution,” Kruuse and Luyt said. –Sapa