The state law advisor has presented Members of Parliament with more than 60 pages of further suggested changes to the Protection of Information Bill. An ad hoc committee considering the draft law held its first meeting on the controversial legislation yesterday.
The South African Press Association reports wrangling over the bill that is widely viewed as an attempt to increase state secrecy, is expected to continue for some time, though according to the parliamentary programme the draft law is meant to be finalised this week. “We need a year,” Democratic Alliance MP Dene Smuts told the news agency. Cecil Burgess, who chairs the ad hoc committee, refused to pronounce on the time needed to finish the job. He said he had been forced to draft a tight schedule as the lifespan of the committee expires soon, but could request to have it extended yet again.
The changes made by the state law advisor leaves open the question of how to reconcile the Bill with the liberal Promotion of Access to Information Act (PAIA). This suggests a possible retreat from a proposal made by Burgess – and welcomed by the opposition – last year that all requests to declassify information be handled through PAIA. SAPA noted the cross-referencing would have provided some relief to journalists in that PAIA contains a public interest override, but it stopped well short of creating a public interest defence. The media, rights lawyers and the opposition have clamoured for such a defence as it would allow journalists who publish classified information to argue they did so in the public interest.
African Christian Democratic Party MP Steve Swart said the major issue to be debated in coming weeks or months remained the public interest defence. “That is going to be the important angle.”
The governing African National Congress (ANC) has repeatedly said it will not relent on the issue, and the draft changes simply contain a clause requiring the authorities to take into account “the public benefit to be derived from the disclosure of the information”.
An earlier version of the bill provoked a public outcry last year, with commentators calling it a “return to apartheid-era suppression of information in a bid to prevent criticism of the ruling party.”
The ANC subsequently removed provisions that would have allowed the government to use the nebulous notion of “national interest” as a rationale for keeping information under wraps. That version would also have enabled the minister of state security to classify information to prevent embarrassment to an organ of state. The changes tabled yesterday expressly prohibits this.
But despite considerable backtracking by the ANC, heated philosophical debates about state secrecy and the scope of the bill are still expected, with the opposition arguing for as little classification as possible, and the ANC warning of the dangers of failing to file away information that could destabilise the state. Burgess, an ANC MP, yesterday stressed the role of the state in providing security to its citizens as an important rationale behind the legislation. “It is not an easy job for the government to protect its people.”
He accused the media of stirring fears that powers to classify information would be abused by corrupt officials, and said the Bill could not be drafted as if nobody in the state service could be trusted. But his critics have quoted 1960s US President Lyndon Johnson’s caution that one does “not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered.”
Other draft laws currently before Parliament influencing the free flow of information include the Protection of Personal Information Bill and the Protection from Harassment Bill.
Once enacted they will join a number of existing laws that for reasons good or bad already restrict your access to information and news. These include the current Protection of Information Act 84 of 1982, the Defence Act 42 of 2002, the Protection of Constitutional Democracy Against Terrorism and Related Activities Act 33 of 2004, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, the Criminal Procedure Act 51 of 1977, the National Key Points Act 102 of 1980, the Films and Publications Act 65 of 1996, the Films and Publications Amendment Act 3 of 2009 and the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002. Further limitations in law include limitations on court reporting imposed by the Children’s Act 35 of 2005, the Child Care Act 74 of 1983, the Divorce Act 70 of 1979, the Maintenance Act 99 of 1998, the Magistrates’ Court Act 32 of 1944 the Inquests Act 58 of 1959 and others. This is in addition to the common law delict of defamation (libel or slander) and the common law crime of crimen iniuria (criminal defamation).
Waiting in the wings is a National Key Points and Strategic Installations Bill and possibly a “Internet and Cellphone Pornography Bill” and maybe another establishing a Media Appeals Tribunal (MAT) that in the worst case could jail journalists. The South African Institute of International Affairs in an opinion editorial noted this week the ANC hopes the “secrecy Bill” and MAT will regulate the print media specifically, which is deemed by the party to suffer from “an astonishing degree of dishonesty, lack of professional and integrity and lack of independence”, according to the ANC’s “media transformation, ownership and diversity” discussion document.
But Judge Robert Nugent, writing for a full bench of the Supreme Court of Appeal in 2007 noted that it “is important to bear in mind that the constitutional promise of a free press is not one that is made for the protection of the special interests of the press.” Writing in Midi Television (Pty) Ltd v Director of Public Prosecutions  SCA 56 (RSA) he cautioned against a special status for journalists: “As pointed out by Anthony Lewis, in a passage that was cited by Cameron J in Holomisa v Argus Newspapers Ltd: ‘Press exceptionalism – the idea that journalism has a different and superior status in the Constitution – is not only an unconvincing but a dangerous doctrine.'” He continued: “The constitutional promise is made rather to serve the interest that all citizens have in the free flow of information, which is possible only if there is a free press. To abridge the freedom of the press is to abridge the rights of all citizens and not merely the rights of the press itself.”
Nhlanhla Ngidi, the Director-General KwaZulu-Natal last month told a provincial Department of Arts and Culture forum that the drafters of the present Constitution included the right to information
in the Bill of fundamental Rights as “they had a vision of South Africa as a vibrant, living and open democracy where our citizens would be consulted by government, would participate in government decision-making, and ultimately, would hold government accountable.
“A society underpinned by Constitutionalism and the Rule of Law, where the values of openness and transparency would prevail – a society free from maladministration, free from corruption and free from secretive practices and withholding of information to which only a select few would be privy to.
“So important did the drafters of our Constitution (and our Parliament – the elected representatives of our people) regard the right to information that the Constitution makes the enactment of national
legislation a constitutional obligation to give practical effect to this right,” Ngidi said in a speech prepared for delivery. “As we know, this culminated in the enactment of … PAIA. It is aimed at giving practical effect to all the rights in the Bill of Rights contained in our Constitution, and
establishing a culture of human rights and social justice. It aims to empower and educate society to understand and enforce their rights; to understand the functions and operation of public bodies and, not only to participate in, but also to scrutinise decision-making by public bodies and to hold those public bodies accountable. PAIA confers upon the citizens the right to participate in the formulation of policies and laws which will be implemented to regulate aspects of their lives, to govern them.” Critics of the “secrecy Bill” say an overly broad law will undo PAIA and leave citizens unable to enforce their rights.