The first version of the Protection of Information Bill was introduced in Parliament in 2008 but was subsequently withdrawn following fierce criticism.
The first version of the Protection of Information Bill was introduced in Parliament in 2008 but was subsequently withdrawn following fierce criticism.
A second draft was presented at public hearings last week. The document says its purpose is to make government more transparent and accountable while acknowledging that some state information that could threaten the national interest of South Africa should be restricted.
‘National interest’ in the Bill includes the advancement of public good, survival and safety of state and citizens, and “the pursuit of justice, democracy, economic growth, free trade, a stable monetary
system and sound international relations.”
The proposed Bill will give government officials the power to make information confidential if it is deemed to be in the national interest.
Government officials will also be able to classify information that may prejudice the commercial or financial interests of government departments.
According to the document, “A request for access to a classified record can be made in terms of the Promotion of Access to Information Act.”
If a person asks for the status of classified information to be reviewed, however, the head of an organ of state has the right to refuse to confirm or deny the existence of information if it is top secret.
The Bill will also make it illegal for anyone to reveal information defined as Confidential, Secret or Top Secret.
If someone is in possession of confidential information and they do not hand it over to the police, they are guilty of an offence.
This means they can be fined or go to jail for up to 25 years. Robert Brand, Pearson Chair of Economics Journalism at the Rhodes University Journalism School, says that the purpose of the Bill is to replace the Protection of Information Act of 1982, a draconian apartheid law that was used by the state to declare information secret and therefore withhold it from the public.
It is up to the Minister of State Security to prescribe categories and security standards of classifiable information within 12 months after the Act has been passed.
For the Bill
The Bill seeks to ensure that is there is access to information and is aimed at promoting human dignity and equality, says Lungile Mxube, ANC Regional Deputy Chairperson of the Cacadu Region, who supports the Bill.
“There’s nothing wrong with the principle of protecting information in a society as long as that principle also seeks to enhance constitutional and human rights values.”
“There’s no way the ANC will seek to introduce laws that will take us back to the old apartheid and colonial system,” he says.
Rather, the Bill aims to regulate how information should be managed. “It does not seek to prevent the media from accessing information from institutions of state.
We work procedurally and correctly. We don’t use secret ways of accessing information,” he says. He adds that the Bill would assist journalists who work ethically “so they don’t fall into the trap of the brown envelope syndrome”.
He says the Bill would not undermine the media freedom of journalists who follow the correct procedures in terms of accessing information within state institutions, and that it supports and promotes good governance.
“The responsible minister must prescribe what information is classified. The main intention is to protect information from anyone who tries to destroy it, for example corrupt government officials.
One of the key elements is to root out corruption.” When asked about municipal managers who would have the power to withhold public information, he says, “There are some unscrupulous elements who may want to abuse the Bill in order to make it difficult for journalists to access information.”
Local municipalities and the media should form a “dynamic relationship”, and work with and not against each other, he says.
“We’re not saying the Bill is perfect… but the role of the media is to strengthen the democracy by ensuring that you educate and inform the public so the public can take an informed decision as custodians of their own democracy.”
Against the Bill
A “massive threat to media freedom” is how Derek Luyt, Head of Media and Advocacy at the Public Service Accountability Monitor (PSAM), sees the proposed bill.
He believes the government is implying that the media is free, but that journalists are abusing that freedom. “No one is arguing that media freedom is inconvenient at times, and at times journalists get it wrong.
Of course they do… but you can’t throw the baby out with the bathwater. Sure, the media gets it wrong and some journalists are dishonest, but you cannot therefore use that as a reason to muzzle the entire media.
So I would say this is a bit like taking a sledgehammer to a mosquito.” Luyt says the Bill is shortsighted because the foundation of Constitutional Law and the Rule of Law is to set boundaries to the benefit of all concerned, not narrow partisan interests.
“So yes, the ruling party might currently find some things in the media uncomfortable… it’s often said that the media tend to focus on the negative. So what? That’s their job.” Robert Brand adds two shortcomings of the Bill, starting with the definition of national interest.
“They need to make it clear that if information were to be made public, that it would jeopardise the safety of citizens or military secrets.” He is also worried that there is no public interest override.
This means that matters affecting the wellbeing of the taxpaying public, such as corruption, government spending and tenders may not be reported in the media.
To show that the effects of the Bill could stretch beyond the media, Luyt provides the practical example of someone who tenders for a contract to build a road.
He says the Bill could be used to prevent people from getting information about why they didn’t get a tender, and why someone else did.
“The government could claim that the information is classified as it is in the interests of economic growth or business confidentiality,” he says.
Worried that the Bill is chipping away at hard won freedoms, Luyt says, “The freedom of the media is absolutely vital to a democratic dispensation.
And the minute you start tampering with that, then you’re setting a precedent to tamper with other freedoms.
And once you start tampering with freedoms, where does it end? Where do you stop?” Brand is equally concerned that the bill follows a recent trend by government to clamp down on the media, which includes the proposal for a media tribunal to regulate the press and the reworking of the Criminal Procedures Act Section 205, which threatens the confidentiality of sources.
