South Africa’s Protection of Information Bill is a confusing and highly controversial piece of proposed legislation. I’ve wanted to write about it in the blog but it’s pretty heady and when I think I understand the basic points – the situation changes. On September 20, the bill was “unexpectedly removed” from the Parliamentary Programme of South Africa’s ruling ANC party. This happened just before its scheduled debate in the National Assembly. The reason given was to “allow for further public consultation on the Bill with interest groups, civil society, and members of the public”. The Bill is now “tabled” in the National Assembly where it “sits in limbo”.
The Protection of Information Bill aims to regulate the “classification, protection, and dissemination of state information, weighing state national interests against transparency and freedom of expression”.
To appear on the Parliamentary Programme again, the bill must first go before the Chief Whips Forum and then the Parliamentary Programme Committee. Chief Whips Forum leaders include Chief Whip Mathole Serofo Motshekga, Deputy Chief Whip Mathole Serofo Motshekga, and Chief Whip of the National Council of Provinces (NCOP) Nosipho Dorothy Ntwanambi.
Part of the controversy over the Bill is its broad definition of “national interests”. Critics argue that coupled with widely granted powers to classify documents as secret in the name of national interest, the Bill is harmful to transparent government in South Africa. It advocates harsh penalties for disclosing classified information. Many think that the proposed Bill does not follow South Africa’s Constitution but the ANC government strongly denies that the Bill is in any way illegal.
Those who oppose the Bill fear that the ANC may dramatically restrict the rights of citizens to check the actions of government officials. As written, the Protection of Information Bill “grants the government broad powers to classify documents for reasons ranging from national security to protection of state possessions”. This could include everything from “top-secret weapon plans for South African National Defense Forces to the allotments of elephant feed at the Johannesburg Zoo”. The bill specifically forbids classifying documents that are merely embarrassing or that show incompetence. It authorizes prosecuting journalists who have documents labeled as ‘secret’. Media groups argue that this effectively makes investigative journalism illegal.”
The Congress of South African Trade Unions (COSATU) claims the Bill “restricts media freedom and severely limits organizations like theirs from holding government accountable or supporting government in working for a better life for all”.
Disclosure of classified information could be punished with penalties ranging from 3 to 25 years imprisonment. There is no option for a fine and the public interest is not explicitly mentioned as a defense. The bill criminalizes improperly classifying information where the intent is to:
• Conceal breaches of the law
• Promote an unlawful act, inefficiency, or administrative error
• Prevent embarrassment
• Give undue advantage to anyone in a competitive bidding process
Director David Dadge said, “I am concerned that if turned into law, this Bill will permit the concealment of a vast range of information that is in the public interest, and lead to the erosion of investigative journalism.”
The Right2Know Campaign (R2K) is a nation-wide coalition of people and organizations opposed to the Protection of Information Bill. Those supporting the R2K campaign think the Bill threatens their hard-won constitutional rights, including access to information and freedom of expression. The R2K campaign statement – “Let the truth be told. Stop the Secrecy Bill!” – demands that the Bill either be thrown out or drastically rewritten to bring it in line with South Africa’s constitutional values. The group marched to Parliament in Cape Town in protest and conducted candlelight protest vigils. R2K protest participants include author Nadine Gordimer and Nic Dawes, Editor in Chief of Mail and Guardian Newspaper.
“Elsewhere on the African continent, there are positive signs that governments are embracing principles of freer access to information. Nigeria adopted a progressive Freedom of Information Law in 2010. Uganda passed an Access to Information Act in 2005. In 2010 Uganda debated the whistle-blowers protection bill, which aimed to create an enabling environment for citizens to freely disclose information on corrupt conduct in public and private sectors. In Kenya activists and lawyers are pushing government to make changes to comply with its new constitution, which grants citizens access to information held by the state”.
The Protection of Information Bill criminalizes whistle-blowers and investigative reporters so severely that few will have the courage and endurance to speak truth to power, says Ayesha Kajee. Kajee is the executive director of the Freedom of Expression Institute, a researcher at the South African Institute of International Affairs (SAIIA), and a board member of Transparency International’s South Africa chapter.
Some of the many other organizations protesting The Protection of Information Bill include:
• Black Sash
• Community Journalists
• New Women’s Movement
• Congress of South African Trade Unions (COSATU)
• Right2Know Campaign (R2K)
• International Press Institute (IPI)
• Automotive Industry Development Centre (AIDC)
• Delft Township
• Cape Argus Newspaper Cape Town
• Mail and Guardian Newspaper Johannesburg