The Protection of Information Bill remains an imminent threat to freedom and transparency, and should be scrapped and redrafted, the Right 2 Know campaign announced this week.
The campaign, which formed exactly one year ago with the aim of protecting access to information and accountability in government, made its outcry just days before Parliament is scheduled to finalise the draft.
The Bill is a replacement of apartheid-era secrecy legislation. Critics say the Bill will institutionalise corruption and punish whistleblowers, ordinary citizens, and journalists who expose state secrets exposing government wrongdoing.
Media analysts say the Bill will bring the death of investigative journalism and free reporting in South Africa.
“The Bill does nothing to protect our right to access information. The preponderance is always toward secrecy in every clause,” Murray Hunter, Right 2 Know national coordinator, told the Mail & Guardian.
This campaign is calling for Parliament to redraft the Bill in its entirety with public consultation, and without input from the ministry of state security.
“We are saying that this Bill is fundamentally flawed and we shouldn’t have to accept piece mail victories and Frankensteinian surgery,” Hunter said.
Debate of the Bill began in an ad hoc parliamentary committee on Tuesday. The ANC hopes this week’s Friday deadline will be met so the National Assembly can vote on the Bill before mid-September.
Pivotal decisions made so far include Parliament’s refusal on Wednesday to allow a public interest defence into the legislation. Civil society groups are outraged and have been fighting for the provision for a year to protect whistleblowers who testify that they revealed state secrets for the public good.
ANC MP Luwellyn Landers said the decision does not threaten freedom of expression, and “merely makes the media subject to the rule of law”.
Mail & Guardian editor-in-chief Nic Dawes said that without the public interest defence, the Protection of Information Bill is “antidemocratic”.
Mario Oriani-Ambrosini of Inkatha Freedom Party tried to convince the ANC to allow the defence. However, the chairperson of the committee drafting the Bill, Cecil Burgess, said its decision is final.
The first two sessions also illuminated Parliament’s stance that the secrecy Bill will override any provisions in the Promotion of Access to Public Information Act (PIA).
“When there is some kind of conflict between the need to access information through the PIA and the need to protect information, the secrecy Bill always wins,” Hunter said.
“It’s a very disappointing move by the ANC,” Hunter said of the developments. “It reveals a paranoia and obsession with secrecy that is no good to anyone.”
Major objections have also arisen from provisions in the Bill that allow secrecy beyond strictly defined national security matters. The Bill extends the definition of “national security” to protection against “exposure of economic, scientific or technological secrets vital to the Republic”. This provision could, for instance, legitimise the terms of the financial transactions the bank loans to government that financed the Arms Deal.
The Bill also does not limit secrecy to state bodies in the security sector such as the police, defence and intelligence agencies. Thousands of state organs can classify information with “good cause” if they are granted permission by the security minister.
This provision lacks an independent body appointed by Parliament to review decisions about what is made classified, which could enable national keypoints such as power stations or oil refineries to keep more information classified.
Civil society group’s push to establish oversight took a hit earlier this month when the ruling party reversed its concession to have a retired judge as an appeal authority to resolve disputes regarding requests for access to classified material.
“Back then [during apartheid], there was an opportunity to appeal [against censorship],” said Kobus van Rooyen, a commissioner on the Press Freedom Council.
“You knew what was banned and you could appeal. Some stuff was security related but you could mostly see the list of banned information. Here [with the new law in place] you wouldn’t know what’s banned.”
In its current form, any journalists who publish classified information, or ordinary citizens found in possession of any classified documents can be jailed for up to 25 years.
Also under the Bill, citizens and journalists are required to report any leaked documents to police. And spooks are protected from public scrutiny, which hands out jail sentences of up to 15 years for possessing or sharing information about security services.
“Through this process, we may get a compromised version of a fundamentally flawed Bill, but we can never expect it to produce a truly progressive piece of legislation that advances the democratic project in South Africa,” the campaign said in its statement.
Hunter said security officials are “putting so much pressure on MPs” to harden their stance on the Bill and approve the draft soon.
“I don’t see how these issues will be resolved by Friday,” Hunter added.
The Congress of South African Trade Unions (Cosatu), a partner in the ANC tripartite alliance, has also actively called for the protection of whistleblowers, and made a prominent showing with Right 2 Know at a secrecy Bill rally in Johannesburg two weeks ago, when 800 protestors marched to Constitutional Hill to tell the ANC to “stop and scrap it.”
“We reject the Bill in its current form and we have come here to say that no democracy can flourish under the veil of secrecy,” Cosatu president Sdumo Dlamini told protestors at the recent rally.
People across races gathered in Braamfontein with signs reading, “Free Press = Free SA,” “Speak now or be gagged forever,” and “No information means no accountability.”
“If they continue to push this Bill through in its current form, particularly in this slapdash manner, parliament is forcing civil community and Right 2 Know to take this issue to the street and challenge it in the [Constitutional] court,” Hunter said.
“By dismissing the issues being raised, they are forcing our hands to a legal challenge.”
The passing of the Protection of State Information Bill came as no surprise, raising the threat to media freedom. View our special report.