The ease with which government departments at national and provincial level have used apartheid-era hangover laws, like the Protection of Information Act of 1982, to stop the free flow of information remains a bug bear to media freedom protagonists.
The Protection of State Information Bill (Posib), also known as the secrecy Bill, passed by Parliament last week, was drafted to replace the Protection of Information Act (PIA) of 1982. Government does not deny that PIA was open to abuse by the apartheid regime, which used it to hide state information at will and jail those who disseminated classified information. This is why it needed to be replaced.
But the draconian nature of the PIA has not stopped post-democratic state agencies from treating it as if it were legitimate and constitutional, by bending its provisions to conceal potentially damning information.
Government's numerous refusals to requests for information under the Promotion of Information Act of 2000 (Paia) are also littered with references to thePIA classifications, in spite of the fact that the PIA will certainly be repealed as soon as the secrecy Bill is enacted. Most recently, attempts to access information about Nkandlagate were blocked by the department of public works using this law.
Paia was enacted in mitigation of the previous regime's "culture of secrecy": its provisions are intended to enforce transparency and access to information in the public interest. This is one of the improvements to the secrecy Bill, in that it no longer directly clashes with the provisions of Paia.
But while the secrecy Bill debate raged on in Parliament, government went ahead using other laws to block access to information.
Nongovernmental organisations have long equated the arbitrary application of the PIA and other apartheid-era leftovers, either by incompetence or conspiracy, with the proliferation of a "culture of secrecy" in the public sector.
'Against the grain'
In a piece written in 2003 for the Centre for the Study of Violence and Reconciliation independent researcher Dr Dale McKinley described the PIA: "As could be expected, the approach to the protection and dissemination of information contained in the PIA is informed by the demands of an authoritarian and secretive apartheid state. As such, the provisions of the PIA for classification and de-classification of government information run completely against the grain of the openness and transparency of such information that informs Paia," McKinley said.
As the South African History Archive recently told a court, this culture has prevented it from accessing information, for example, from the Truth and Reconciliation Commission hearings.
The Right2Know campaign, a civil society coalition that campaigns against the Protection of State Information Bill, in a recent statement about the state of secrecy in South Africa, said: "Secrecy robs us all equally of the opportunity for real social justice. Some secrets might be necessary – the criminal justice system and the state-security cluster do indeed keep secrets that save lives. However, far too much information is withheld from public view by individuals who, with increased frequency, fail to live up to the values enshrined in our Constitution."
A lesser known example of the use of PIA involved a case of alleged corruption in the Northern Cape in 2011. At the height of the debate about the secrecy Bill, the Northern Cape provincial legislature purchased a Mercedes Benz worth R590 000.
Documents in the Mail & Guardian's possession show the car was initially registered in the name of the ANC's provincial secretary, Zamani Saul, who was not a member of the provincial parliament.
Saul claimed his signature was "forged" on the vehicle registration document, although he publicly admitted to being the only one who used the car, for his personal and political needs.
In response to the allegations, the legislature fashioned a task team whose work it was to uncover what went wrong, while police investigated charges of fraud.
Members of the task team were asked to sign a confidentiality agreement, preventing them from talking about, or leaking information that emerged from the task team's closed-doors hearings – even after the task team had completed its work.
According to the contract, members of the task team would:
- "have taken note of the provisions of the Protection of Information Act (Act 84 of 1982) and in particular the provisions of section 4 of the Act.
- "I understand that I shall be guilty of an offence if I reveal any information which I have at my disposal, by virtue of my office, and concerning which I know or should reasonable know that the security or other interests of the republic required that it be kept secret …"
Closed off to the public
An investigation into an allegation of fraud and the misuse of public funds, allegedly to benefit an ordinary citizen, also a high-ranking member of the ANC, was summarily closed off to the public forever.
Indeed, that task team was faced with the prospect of lengthy jail terms in terms of the PIA if they so much as talked about the investigation:
- The PIA of 1982, particularly section 4, threatens minimum jail sentences of 10 years or fines of R10 000 for those who disclose classified information.
- Section 4, often quoted by state agencies when justifying why information cannot be disclosed, is wide-reaching and vague:
Under the old law, the state can jail for up to 10 years or fine up to R10 000:
- anyone who is possession of "any secret official code or password or;
- any document, model, article or information – which he knows or reasonably should know is kept, used, made or obtained in a prohibited place or relates to a prohibited place,
- any thing in a prohibited place, armaments, the defense of the Republic, a military matter, a security matter or the prevention or combating of terrorism…"
In July last year, amaBhungane, the M&G Centre for Investigative Journalism, launched its Paia bid to access the documents pertaining to the multimillion rand upgrades at President Jacob Zuma's Nkandla compound.
The department of public works opposed the application on state security grounds, as well as the PIA, despite the fact that amaBhungane specifically said it did not want the security sensitive information, but only the information pertaining to the financial implications.
AmaBhungane is currently taking the department to court after it missed the deadline to respond to the Paia application.
The department of public works also said the information was classified because Nkandla is a national key point – another apartheid relic which government readily uses.
Permeating culture of secrecy
In April this year, the South African History Archive applied to the North Gauteng High Court to join amaBhungane's application as friends of the court. In this application, it noted: "The present matter has the potential to impact substantially on the effective implementation of the Paia where disclosure is resisted on grounds relating to alleged national security concerns."
It used examples to illustrate: "The culture of secrecy pervading public bodies, which is one of the primary limitations on the right of access to information; and the nature and extent on apartheid era legislation such as the National Key Points Act, the Protection of Information Act, and the misapplication of Paia's security exemptions to withhold information from the general public."
The South African History Archive noted several examples, on which it did not expect the court to pass judgment.
On the permeating culture of secrecy, it said the state's refusal to grant Paia applications unless there is a threat of litigation on the applicant's part.
It also noted a "knee-jerk" and "unreflective" refusal by state bodies to grant these applications: The state frequently refuses to give reasons for refusal, as it is required to do, or it refuses access to all records, without severing these from classified documents as required by aection 28 of Paia.
The South African History Archive also said the state often does not consider that certain records may be released in the public interest, as set out of section 46 of Paia.
In 2012, of the 159 Paia requests submitted by the South African History Archive to various organs of state and private bodies, 102 were outright refused or blatantly ignored. Ten out of the 11 Paia requests submitted to the presidency were also refused.
Real test of Zuma's government
But the fight for transparency, especially with regards to the presidency, is far from lost.
On Monday night, the presidency confirmed that it had not yet received the Protection of State Information Bill. So it remains unclear if he will refer the Bill to the Constitutional Court, or sign it as is.
The Right2Know campaign believes this decision will be the real test of Jacob Zuma's government's commitment to openness.
"Should he choose to exercise his powers to refer the Bill to the Constitutional Court, the president would affirm to the nation his commitment to building a progressive society characterised by openness, and to tackling the creeping culture of secrecy currently facing South Africa.
Should he choose to pass this Bill into law, however, he will strengthen the growing public resolve to stop the unjustifiable secrecy, to stop the grab for power by securocrats and their cronies, to stop the lies," the organisation said.