The Protection of Information Bill now before Parliament is unconstitutional, a raft civil society organisations say. The bill, to replace a 1982 law with a similar name, sets out the grounds for classifying government information and provides harsh penalties for any transgression , is before Parliament for a second time after the first attempt was similarly criticised about two years ago.
Business Day and the Independent Group newspapers say it is the second time in the last two years legislation that threatens press freedom has been introduced by the African National Congress government. The first was amendments to Films and Publications Act that failed to exempt the media from obtaining pre-publication approval for reports on certain topics. The resulting uproar led to the reintroduction of an exemption clause, Business Day reports.
Nearly all organisations appearing before a special ad hoc committee yesterday also complained that the definition of “national security” was so vast that it could result in apartheid-style suppression of information, the Independent Group reported. Two organisations went as far as to recommend that the bill be withdrawn and rewritten. Business Day added the definition of national interest was also so broad that when read together “almost any government document” would be classified.
The paper was also critical of what it called draconian prison sentences for those found guilty of publishing classified information. “The assessment is that the threat of a lengthy prison sentence in the bill would destroy investigative journalism in SA, and it was recommended that a public-interest defence be included in the legislation to protect journalists from prosecution,” Business Day said.
The South African National Editors Forum (SANEF) said “the bill would amount to an infringement of freedom of expression, in particular freedom of the press and other media and freedom to information and ideas”. “Given the impact that the bill is anticipated to have on the activities of journalists under the threat of constant criminal prosecution, SANEF submitted that the bill is likely to infringe on not only the rights of journalists to investigate matters, but also the rights of citizens to receive information about the institutions that govern them.”
The Open Society Justice Initiative said in its submission that “the use of expansive definitions and concepts such as national interest and national security creates room for more secrecy and does not guarantee transparency and public accountability”.
Print Media SA submitted that “various definitions that lie at the core of the bill are so wide as to be utterly unworkable and offensive to the principle of legality, and the rights to free speech and access to information”, and suggested the creation of a public-interest defence for journalists and the public. This view was shared by the Centre for Investigative Journalism at the Mail and Guardian newspaper.
The statutory SA Human Rights Commission said “while legislation like the Promotion of Access to Information Act has been slow to take root, new legislation like the Protection of Information Bill can quickly negate gains made by reinforcing a culture of conservatism and secrecy within the public service to the detriment of our nascent democracy if classification is too easily permitted to become the reason for nondisclosure.…”
SANEF deputy chairman Henry Jeffreys says that at the time of the withdrawal o the last version of the Bill, two years ago, it was pledged that “a large amount of work” would be done to improve the bill, but that this was not reflected in the new draft. Jeffreys says, “if anything, SANEF believes that many of the changes that have been made have tightened the state’s grip on maintaining the secrecy of information and have extended the powers of politicians over the classifying of information. They also removed the few softening features of the original version”.
Among the “softening features” removed is that “state information is not automatically protected against disclosure” and that classification should be used “sparingly”.