Debate on the Protection of Information Bill, which has been dubbed the Secrecy Bill for obvious reasons, has been back in the news this week. The ANC has begun to force the Bill through Parliament, disregarding the legitimate concerns of non-ANC Parliamentarians and civil society, as well as, well, the Constitution of the Republic of South Africa. The manner in which the ANC is doing this is unconstitutional, against established legislation drafting practices and has been downright hostile. In its current form, this Bill will never pass constitutional scrutiny and, as things currently stand, unless President Zuma intervenes and refuses to sign this Bill into law, South Africa will be facing a very nasty fight in our Constitutional Court, which the ANC will never win, but during which time the Bill may be operational.
I’ll give a bit of background for those of you who are not familiar with the provisions of the Secrecy Bill or it’s possible implications. Essentially, the Bill seeks to classify certain information into various categories: valuable, confidential, secret, top secret and so on. Any head of “an organ of state” may classify information, or may delegate the power to classify information to other persons. It is estimated that over 1000 entities could fall under the description of “an organ of state”, so that’s over 1000 people and, in light of the delegation powers, it could be many more thousands of people who can classify information pretty much as they wish.
Information will be classified depending on its “national interest” importance. The Bill has an open-ended definition of “national interest”, which includes, but is not limited to “all matters relating to the advancement of the public good”. It’s an extremely broad definition. “National interest” includes things like “security from all forms of crime” and “details of criminal investigations and police and law enforcement methods”, i.e. basically everything. So, for example, police enforcement methods, which increasingly involve excessive police brutality, would fall within this broad definition of “national interest”.
Apart from the extremely broad definition of information that can be classified, there are many other things that greatly concern me about the Bill. For example, people can fall foul not only for possessing classified information, but also if they should reasonably have known that they possessed such classified information. So, if you tend to not really pay attention to what’s happening around you or in current affairs in the country, best you snap out of it and start paying attention or you could inadvertently end up in deep shit. If you retain this information (which, remember, you may not even know that you have), you’re in even more shit. And, should you publish such information, then God help you. Here, ladies and gentlemen, ends all freedom of media in South Africa.
The Bill defines “espionage offences” and “hostile activity offences”, both of which carry jail terms of up to 25 years. 25 years! And no, I’m not kidding. Imprisonment of between 15 and 25 years will be given to those that “unlawfully communicate, deliver or make available State information classified top secret which an offender knows or ought reasonably to have known or suspected would directly or indirectly prejudice the state“. There it is again, you don’t even need to be aware of what you’re doing and you can end up in the slammer for 25 years. WTF??!
And who gets to decide what “prejudice to the state” is anyway? Those potential thousands of people in countless organs of state in South Africa? From past experience, we’ve seen that the ANC only likes what it calls “patriotic journalism”, which is when journalists write nice, polite and complimentary things about the government and South Africa as a whole. I guess anything that is even slightly less than complimentary will be regarded as prejudicing the state and those who write it will end up in jail. For a long time. This all sounds vaguely familiar… if only I could place it… hmmm… oh, yes… communist Russia under Joseph Stalin. Do you think the ANC will stop there or will they make the imprisoned journalists work in salt mines too?
And before you complain that maybe this is necessary because South African journalists sometimes make mistakes and they should be punished for it, just remember that that is the nature of investigative journalism. Mistakes happen. The mistakes they make, however, are greatly outweighed by the good that they do. With this Bill, the ANC is not trying to punish journalists for making mistakes, they are trying to punish journalists for telling the truth.
Before last week’s elections, the ANC made certain concessions where they agreed to replace “national interest” with the more restricted “national security”. They also agreed to bring the Secrecy Bill in line with the existing Promotion of Access to Information Act (which protects your right to know and which is in total contradiction to the Secrecy Bill). Mere days after the elections, they’ve reneged on these concessions. Maybe they’re sulking because they lost 2% of their support. Who knows.
Oh, and before I forget, the ANC will not allow the defence of public interest to be included in the Bill because, heaven forbid, anyone else might know what’s best for this country or may have a legitimate reason for exposing what he or she did. The ANC’s reason for not allowing the public interest defence is that they couldn’t find any international good practice that allowed for it. Where were they looking? The Arab world? Zimbabwe? Also, I hate to break it to you, but the lack of the public interest defence internationally is most probably because there is no international good practice that allows for states to violate their citizens’ right to know by way of Secrecy Bills and similar crap.
In short, a journalist who reports on police brutality, which I’m sure would be regarded as “prejudice to the state” will go to jail for upwards of 15 years. So would a journalist who reports on fraud in government tenders. And so will a journalist who reports on Sheryl Cwele being a drug trafficker because, as we all know, her husband is the head of an organ of state and could so very easily classify anything to do with her criminal activities as not being in the national interest.
And before you think that it’s just the rights of journalists that will be infringed, you should pause for a second and contemplate how this Bill will violate your right to know… because under this law, you will know nothing. About anything. Now, I for one don’t know who gave the ANC the right to decide what I’m allowed to know and what I’m not allowed to know about my life and the things that affect it, and I’m really angry about what’s going on.
As far as the ANC is concerned, I’ve never been very critical of them, in fact I’ve supported much of what they’ve done. However, what the ANC is doing with the Secrecy Bill is frightening and it makes my blood run cold. It is a relief that not all ANC leaders support the Bill, leaders like Pallo Jordan have come out against it, and I hope that there are many more similarly minded people. I hope, too, that ANC leaders will remember how hard they fought, and how much they sacrificed, to secure our right to know. I hope that they will stand against what is being done in their name. I hope that they will remember that once the ANC were warriors.