Protection of Info Bill - "Minister Cwele's veil of darkness"

 The Helen Suzman Foundation promotes liberal constitutional democracy in all its constituent parts. This is the basis for the Foundation's objections to the Protection of Information Bill currently up for discussion. With the many other civil society organisations which have indicated their many objections to this Bill - including COSATU, the Media and The Right2know campaign and the thousands of individuals who have signed onto that petition - we seek to highlight the potentially damaging consequences of allowing this Bill to pass into law.

The Foundation concedes that every state needs to maintain its national security. However, the Bill's understanding of "national security" is so broadly defined as to raise questions about the intention of the Bill. A particular matter of concern is the lack of transparency, downward accountability and independent review of the behaviour of heads of organs of state in classifying information. In effect, senior civil servants will apply a subjective test, not open to independent review, in determining what may or may not be in the public's best interest.

In viewing the penalties which the Bill proposes, an impossible burden will be placed on the courts which can only result in massive self censorship in the media. Section 6 of the Bill emphatically acknowledges the importance of freedom of expression and the free-flow of information, viewing these as "the basis of a transparent, open and democratic society". This Bill undermines the very public interest that it purports to protect. It has no place in a liberal constitutional democracy.

Of serious concern is that the ANC has completely ignored legitimate objections to this poorly drafted, potentially very damaging and no doubt unconstitutional piece of legislation.

Unfortunately for the broader public these deliberations have taken a turn for the worse. The ANC-led parliamentary Committee has back-tracked on a number of concessions which were made before the municipal elections and is now attempting to force through the legislation using the numerical advantage it enjoys on the committee.

This move poses serious challenges, not only for the people of South Africa who ultimately will be the losers if this legislation is passed, but also for the judiciary, which will be forced to sentence transgressors according to the mandatory sentences laid out by the Bill. And what of our Constitution which guarantees the right to information?

Clearly there is an overriding need for Civil Society Organisations and others to mount a significant challenge, on all fronts, to this Bill, as it represents a clear and present danger to South Africa's maturing liberal constitutional democracy.

Why is the Protection of Information Bill bad for South Africa?

As a liberal constitutional democracy, the state is bound by the Constitution to uphold and promote the rights which are articulated in the Bill of Rights. South Africa is not governed by an authoritarian regime or by a dictator, where arbitrariness and secrecy are the norm.

South Africa's Constitution is an expression of the values this society holds dear and the values the country espouses as an active member of the international community. The Protection of Information Bill seeks to undermine those values and circumscribe those rights.

The final report delivered by the Ministerial Review into the State's Intelligence operations in 2008 stridently argues for the Constitution to guide the way in which legislation is drafted, and the impacts on society and the rights of citizens that legislation will have.

It states clearly: "In the South African context... there is a constitutional presumption in favour of transparency and access to information. Secrecy must consequently be regarded as an exception which in every case demands a convincing justification".

 Cecil Burgess, the Chair of the ad hoc Committee deliberating on the Bill, assures us that in the State Prosecutor's opinion the current Bill will stand up to constitutional muster. However, one of the primary sticking points is that the current Bill is not aligned to the Promotion of Access to Information Act 2000 (PAIA); nor does it allow for a public interest defence. Essentially, it seeks to hide information and imprison those found to hold such information without permission.

This is neither the type of Bill South Africa needs nor one that will empower the rights of individuals as per the Constitution. There are a number of ways available to the state to protect information which needs protecting while also giving substance to the Constitutional right to information.

With legislation of this nature it is imperative that tight definitions, which spell out exactly what type of information is to be classified, how that procedure must unfold, who has the capacity to undertake such action and what recourse the public has to getting that information declassified.

This is vital to safeguard against the arbitrary classification which the Bill, in its current manifestation, does not allow for. Moreover, as a constitutional order which places a premium on the freedom of the individual, the absolute last thing our legislators should be trying to do is mete out legislated minimum prison sentences.

While the Bill will significantly undermine a free media, this is not the only concern, however. There are other important issues at stake. The Bill, if passed, will make the Ministry of State Security a Super Ministry, with the ability to overlord all other organs of state and, by implication, the normal functioning of the economy and its participants. There is also a service delivery aspect.

Access, for ordinary people, to all kinds of information regarding the services they access could be compromised by the overzealous classification of information deemed important to "National Security". Government departments responsible for rolling out these services would also be hampered in their abilities to maintain and enhance their deliverables. The Bill also runs the risk of adversely affecting all of the government's anti-corruption measures aimed at rooting out corruption in the public sector.

A Bill of this magnitude with far reaching implications cannot be rushed through the process of formulation for the sake of what looks more and more like political expediency. South Africans are still waiting for the drafters of this Bill to engage with the public on the reasons why South Africa needs such a piece of legislation which will significantly undermine our constitution. Instead, the drafters have sidestepped any meaningful discussion on the subject. Civil society has made its case for why the Bill should be completely overhauled.

What remains is for those who support the Bill to convince us otherwise. We challenge the Minister of State Security, Siyabonga Cwele and the Chairperson of the Ad-Hoc Committee, Cecil Burgess, to engage with South Africans and convince us how this Bill will enhance our Constitutional Democracy! After all, according to the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Section 1(d): "The burden of demonstrating the validity of the restriction rests with the government".

Tim Kenny is responsible for the Justice and Governance Portfolio at the Helen Suzman Foundation.

Issued by HWB Communications on behalf of the Helen Suzman Foundation.

Click here to sign up to receive our free daily headline email newsletter