In the little death of democracy that is the finalisation of the secrecy Bill, there is a kernel of hope - an invigorated civil society.
"Democracies are not born overnight, or built in a year, or by holding one or two elections. They require sustained and painstaking work. Yet, once begun, there can be no going back." – United Nations secretary general Ban Ki-moon on the International Day of Democracy, September 15.
Democracies, Ban might have added, rarely die overnight. They die little by little, right by right, freedom by freedom.
Late on Wednesday, a four-year parliamentary process drew to an effective close when an ad hoc committee of the National Council of Provinces finalised amendments to the Protection of State Information Bill, better known as the secrecy Bill.
Late on Wednesday, our democracy died a little.
Next week, the council plenary will rubber-stamp the Bill. Early next year, after the parliamentary recess and barring a damascene conversion – or perhaps replacement – of the incumbents at Luthuli House, the National Assembly will affix its rubber stamp too, leaving only a Constitutional Court challenge between the Bill and it becoming law.
The secrecy Bill, an activist tweeted at the close of Wednesday's proceedings, "remains the same ugly" despite last-minute concessions by the ANC.
The concessions came about after Cosatu leaders sat ANC MPs down for an apparently stern chat.
But the amendments – a slight broadening of the limited public interest defence introduced in May, more explicit access to classified information for chapter 9 institutions and the deletion again of the now-you-see-it-now-you-don't override of the Promotion of Access to Information Act – are a sop at best to an alliance partner whose standing may have been improved by its decision to support President Jacob Zuma at Mangaung.
The secrecy Bill remains the same ugly. Here is some of why that is:
- Habitual overclassification will result from loopholes in the definition of "national security", the starting point for any decision to classify information as confidential, secret or top secret, and from the dog's breakfast of instructions given to the bureaucrats who will take the decisions. Information that should be public will be off-limits, likely hiding a multitude of ills;
- Ordinary citizens will be saddled with the state's duty to keep its secrets, introducing hurdles to free speech throughout society instead of protecting state secrets at source.
- The Bill's possession and disclosure provisions apply to "any person" and not only officials and others with an original duty to protect secrets. Should South Africa have its own "cablegate", anyone downloading, passing on or writing about secrets made public by a WikiLeaks equivalent will risk years in jail;
- The "espionage" and "hostile activity" offences are wide open to abuse. Whistle-blowers or journalists who disclose secret information to expose corruption, believing they are covered by the public interest defence, might find themselves charged effectively as spies or terrorists.
- Here, no public interest defence is available and even harsher sentences apply;
- The public interest defence remains limited, allowing only the exposure of criminality and not, for example, an imminent public or environmental danger. For that, one would have to follow the less certain and more time-consuming route of applying for declassification;
- When the Bill becomes law, all information previously classified – even under constitutionally suspect laws and policies and even by state entities that will no longer have the power to classify – will be deemed classified. Hanging on to your trove of apartheid-era files, the equivalent of East Germany's Stasi files opened to all, will turn you into an instant criminal.
Our democracy will die a little. But democracy is not to be underestimated. It is remarkably resilient, as MPs and State Security Minister Siyabonga Cwele found to their surprise when unprecedented civil society activism wrenched concession after concession from them over the past four years.
The concessions are not to be scoffed at. For example, only the state's security apparatus and not all state bodies, down to your local municipality and KwaZulu-Natal Sharks Board, as originally envisaged, will have the power to classify.
Each concession, although sadly short of turning the Bill into a law worthy of our Constitution, was a sign of life, of the power of civil society over a ruling elite increasingly protective – hence its need for secrecy – of the spoils of incumbency.
And so, in the little death of democracy that is the finalisation of the secrecy Bill, there is a kernel of hope. Civil society is reorganised and invigorated once more.
Watch this space.