Presidents’ inaction on Secrecy Bill is delinquent

In 2013, Parliament passed the Protection of State Information Bill (the ‘Secrecy Bill’). However, President Jacob Zuma never assented to and signed the Bill into law. Constitutional law expert Professor Pierre de Vos points out that as the President has no choice in the matter, not assenting to and signing it constitutes ‘an egregious power grab’ on the part of the President. In an analysis on his Constitutionally Speaking blog, De Vos says in terms of section 79 of the Constitution, the President is allowed, first, to refer a Bill (duly passed by Parliament) back to the National Assembly to reconsider any sections of it if the President has reservations about the constitutionality of such sections. Second, the President can also refer the sections he or she believes to be unconstitutional to the Constitutional Court for a decision if he or she is not satisfied with the response of the National Assembly. ‘He or she has a duty to do so diligently and without delay,’ he adds. By not assenting to and signing the Bill, Zuma (and now President Cyril Ramaphosa) have ‘arrogated for themselves powers they do not have. By doing so they are trenching on the separation of powers.’ De Vos says this means that Ramaphosa has now inherited ‘this constitutionally delinquent action’ from his predecessor. While he is entitled in terms of section 79(4) of the Constitution to refer the various sections of the Bill that may be unconstitutional to the Constitutional Court for a final decision, this needed to have happened speedily and without delay (but it has not). Says De Vos: ‘For President Ramaphosa to become constitutionally compliant he either has to assent to and sign the Protection of State Information Bill (not ideal), or he needs to refer the sections which might be unconstitutional to the Constitutional Court for a final decision (obviously the better option). What he is not permitted to do is to delay the matter any longer.’