Media freedom: Our battle plan to save the open society

Note to editors: The following statement accompanies the press conference held in Parliament this morning by the Democratic Alliance, presented by DA Leader Helen Zille, DA National Spokesperson Lindiwe Mazibuko MP, and DA MPs David Maynier MP and Dene Smuts MP.

The Protection of Information Bill currently before Parliament poses the gravest legislative threat to our constitutional democracy since 1994. We in the Democratic Alliance will fight the Bill with every means at our disposal.

Today I would like to share this battle plan with you. Before I do so, let me briefly summarise what is contained in the Bill:

• The Bill makes it a punishable offence (up to 25 years in prison) to possess, communicate or publish classified state information.
• Any government information is classifiable if (in the judgment of politicians and senior civil servants) its disclosure is deemed harmful to the "national interest". The Bill enables any "head of an organ of state" or any person delegated by them at a national, provincial or local level or parastatals, to classify documents. Importantly, it gives the Minister of State Security the power to define what categories of information are classifiable.
• The "national interest" is defined as all matters "relating to the advancement of the public good", "the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound international relations", as well as "all things owned or maintained for the public by the state."

Just like under apartheid, the Bill will allow the government to invoke the "national interest" to cover up abuse of power. Documents that contain evidence of corruption, maladministration or dodgy deals are likely to be classifiable - in the "national interest".

This Bill would have a devastating impact on press freedom. In fact, it would effectively outlaw investigative journalism and whistle-blowing in relation to activities undertaken by the state, or the government.  Key media exposés since 1994 - including the Arms Deal, Oilgate, the bribing of Selebi, Malema's tenders and Bheki Cele's flouting of tender procedures - may never have seen the light of day, if this Bill had been law. Indeed, the journalists and editors who legitimately pursued these stories in the public interest might now be sitting in jail.

Besides the threat this Bill poses to press freedom, it has another serious implication. It will mean that Parliament will lose its ability to effectively oversee the Executive - one of the primary functions of a legislature in a democracy. Probing parliamentary questions are likely to be rebuffed on the grounds that divulging the requested information would pose a threat to the "national interest".

As a party that strives for maximum openness and transparency under the Constitution, the DA has a responsibility to stop this Bill from becoming law. This is what we plan to do:

1. Oppose the passage of the Bill through Parliament

Our initial energies will focus on stopping the Bill being passed at all. To this end, we will request a meeting with President Jacob Zuma to discuss the constitutionality of the Bill and its perpetuation of apartheid-era government secrecy. It is our hope that given the weight of public opposition to the Bill the President can be persuaded that it should be withdrawn.

In its place, we need an information management Bill which takes as its point of departure the values of openness and transparency, instead of secrecy and concealment. The onus should always be on the state to prove why certain information should not be made public, instead of asking the public to prove why it should be.

If the Executive will not withdraw the Bill, we will use the Ad Hoc Committee to propose amendments to every problematic clause.

In this light, I am pleased to announce that we have appointed our Shadow Minister on Justice and Constitutional Development, Dene Smuts, to the Ad Hoc Committee dealing with the Bill. As a former journalist, constitutional negotiator and long-standing parliamentarian, she is ideally placed to lead the fight against the passage of this Bill through Parliament.

2. Lobby ANC MPs to vote against the Bill

We are aware that many ANC MPs are deeply troubled by this Bill. They believe it undermines our Constitution. But they also believe it undermines the Freedom Charter, the document to which the ANC regularly holds up as its ideological lodestar. It is worth noting that the Freedom Charter promotes media freedom and transparency.

"The law shall guarantee to all their right to speak, to organise, to meet together, to publish, to preach, to worship and to educate their children."

This was amplified by Nelson Mandela in 1994 when he said:

"No single person, no body of opinion, no political or religious doctrine, no political party or government can claim to have a monopoly on truth... It has therefore always been our contention that laws, mores, practices and prejudices that place constraints on freedom of expression are a disservice to society."

We shall actively lobby ANC MPs, both on the Ad Hoc Committee and in the House, to vote with their consciences against this Bill. We believe there are enough members of the ruling party who agree that the hard won freedoms of our democracy are more important than toeing the party line. If 65 ANC MPs - along with every opposition MP votes against the Bill - it will not be passed.

3. Meet the Speaker to discuss the ramifications of the Bill on Parliament

Given the Speaker's duty to "maintain the authority of the House, and to protect its rights and privileges" and to act as "representative and spokesperson for the Assembly and for Parliament in the outside world", it is the Speaker's duty to resist the passage of any bill that will impede Parliament's ability to hold the Executive to account.

Our Parliamentary Leader, Athol Trollip, has therefore requested a meeting with the Speaker of the National Assembly, Max Sisulu, to discuss the Bill and what its passage into law would mean for the future of Parliament. I hope that the Speaker will choose the obligations of the office to which he has been elected over loyalty to the ruling party. He should speak out - loud and clear - against the Bill.

4. Invoke Section 80 of the Constitution

Section 80 of the Constitution grants the National Assembly the power to call for a review of any law on the grounds of constitutionality, if one third of all Members of the National Assembly make such a call. If the Bill is passed we will seek the support of other parties to invoke Section 80 and call for the Constitutional Court to review the Act.  To our knowledge, this will be the first time since the adoption of the Constitution that Section 80 will be invoked.

5. Approach the Constitutional Court to overturn the Bill, should it become law

If our appeal under Section 80 of the Constitution fails, we will nevertheless mobilize public support to mount a collective challenge against the Bill. We will throw our weight behind such a challenge and initiate it if necessary.

We believe that a Constitutional Court challenge would have a good prospect of success. Consider the following clauses in the Constitution:

• The preamble of the Constitution talks of a "democratic and open society..."
• "Responsiveness and openness" is one of the founding provisions.
• The Bill of Rights guarantees freedom of expression, including freedom of the press and the freedom to receive or impart information or ideas.
• Section 32 of the Constitution provides that everyone has the right of access to any information held by the State.

We do not believe that the Bill could survive scrutiny against these provisions of the Constitution.

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The Protection of Information Bill will turn the open society for all envisaged in our Constitution into a closed society to protect corrupt members of the ruling party. Instead of protecting the people from power abuse, the law will protect power-abusing politicians from the people.

This is why it is in everybody's interest - regardless of political affiliation - to oppose this Bill. We call on members of civil society, other political parties, the media and the general public to join us in this fight.  We must protect the right of all citizens to know the truth.

Statement issued by Democratic Alliance leader, Helen Zille, August 5 2010

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