The Protection of Information Bill not only threatens the work of journalists, but also undermines the ability of parliamentarians and elected officials to hold the state to account, Mail & Guardian editor Nic Dawes told Parliament on Thursday.
Dawes was testifying at hearings staged before an ad hoc parliamentary committee on the Bill.
The proposed legislation, which provides for a raft of changes in the way state information is classified and protected, has come under heavy criticism from the media, civil society and even state-owned organisations such as Eskom.
Dawes said the Bill was a “clear and present danger to open democracy in general, including the work of elected representatives like this committee”.
He argued that its intentions — to create an appropriate democratic framework for the management of sensitive information — were laudable. But these were rendered meaningless by the provisions that would have a chilling effect on the dissemination of information by the media or elected officials in the pursuit of democracy.
Dawes noted that public officials, particularly MPs, are supplied with sensitive information by members of the public to expose inefficiency, bungling or corruption by the state and to hold it accountable.
“There isn’t a simple opposition between freedom of information and security, or between the functions of the state and the functions of the media — in fact, these are mutually supportive roles,” he said.
“The problems this Bill represents to the media are the tip of the iceberg. The problems that [it] will represent to people like yourselves in doing the work of enforcing accountability and representing your constituents are equally serious.”
The Bill was first introduced in ÂParliament in 2008, but was withdrawn following intense criticism. It has now returned to Parliament’s agenda in a more draconian form, critics suggest.
Its perceived flaws include vague and excessively broad definitions, such as that of “national security”, which allows for the classification of information by almost every level of government.
The Bill will also allow for the classification of state-held commercial information such as tender proceedings and the activities of state-owned enterprises, which critics argue could contribute to the concealment of corrupt practices.
In a number of instances it also criminalises the disclosure of state information, regardless of whether this is in the public interest.
The Mail & Guardian and the newly founded Mail & Guardian Centre for Investigative Journalism, or amaBhungane, threw their weight behind the submissions made by Print Media South Africa (PMSA).
In its submission PMSA noted that the Bill makes no allowance for disclosures in the public interest, arguing that a public-interest defence should be explicitly included in the legislation.
This would “allow a journalist who publishes classified information to argue that the disclosure was justified — because it revealed evidence of significant incompetence, criminality, wrongdoing, abuse of authority or hypocrisy on the part of government officials,” PMSA says in its Âsubmission.
Stefaans Brümmer and Sam Sole of amaBhungane supported the call for a public-interest defence to be included in the legislation, saying that the public interest is served by disclosures of information that the Bill is likely to classify.
In its presentation amaBhungane gave the example of the Browse Mole report, leaked by Cosatu to the media in 2007. Compiled by the now-defunct Scorpions, this suggested that Jacob Zuma was funded by Angola and Libya and that his supporters were planning an anti-
Mbeki insurrection.
While the information is now widely discredited, the leaking of Browse Mole was “a tipping point, allowing the Scorpions’ opponents to argue the unit was politically Âmotivated”, amaBhungane said.
The public interest was served, amaBhungane suggested, because the Scorpions’ intelligence activities were exposed, enriching the national debate.
The centre also noted that without a public-interest defence Cosatu officials and members of the media could be in jail in terms of the proposed legislation, for possessing and disclosing classified information.