Media storm in a Protection of Information cup?

It is reported that after pressure from civil society and elsewhere, the ANC government introduced some far-reaching amendments to the Protection of Information Bill.  I have not seen the amended Bill but I am told that it limits the scope of the organs of state that may classify information as secret thereby denying access to such information.  I have also heard it suggested that the Bill must have a public interest clause for it to be acceptable.

I may be missing something so maybe if I put my thoughts out there; I could be put straight by a fellow South African or two. This is not a sudden attack of ignorance on my part where the Bill is concerned. As you can see in this piece, even before the amendments to the Bill, I did not think it was as bad as “everyone” seemed to think. When later on I discovered that those who decried the Bill did not seem to have read the Bill, I became more attached to my earlier belief about the Bill. It seemed to me that the majority of the commentators on the Bill (in its earlier and present form) are quite happy to take the word of the media reports on what the Bill says. So I ask - why would so many well known and respected South African be so set against what I believe is a Bill like any other of its kind? I don’t know.

I also don’t know why statements about the Bill or what its effect will be that are simply not fact, are paraded as such. Allow me to illustrate. A caller on SAFM programme says that if the Bill was to become law, the fracking shenanigans in the karoo would not be known. This assertion is accepted as fact by the presenter and his guest, who happens to be Professor Habib. Why is this? I don’t know. Let’s indulge the logic of this caller and compare it to the Bill as it was before the amendments.

Measures taken in terms of this Act must –

(i)                  have regard to the freedom of expression, the right of access to information and the other rights and freedoms enshrined in the Bill of Rights; and

(ii)                be consistent with article 19 of the International Covenant on Civil and Political Rights and have regard to South Africa’s international obligations;

These words come from the Bill. In fact they form part of what the Bill refers to as principles that underpin and inform its interpretation. Now, I would have thought that classifying fracking information would go against these principles and be contrary to the Bill. But then again I may just be naïve. Let it not be forgotten that interpretation of legislation is a job best suited for the courts and not editorial suites.

It seems to me that the general understanding is that the Bill when it becomes law will give this government power to classify information without cause or justification. Moreso, regardless of the provisions and purport of the very Act that empowers them to classify the information.  There are also claims of this Bill being unconstitutional. If this be the case, surely the Constitutional Court will strike it down. These assertions are made without reference (none that I have seen or heard) to the constitution or to the offending portions of the Bill. This should not come as a surprise though. The objections to the appointment of one Mogoeng as Chief Justice were not founded on the constitution which,  govern such appointment. The inappropriateness of Mogoeng was not based on the constitution which required only that he be fit and proper and a South African citizen. The objections were based on his religious beliefs and matters previously dealt with and not regarded as impediments to him becoming Judge President of the North-West division of the High Court and later a judge of the Constitutional Court.

As for the public interest clause, I’m unable to understand its purpose under the circumstances.  The Bill (the one before the amendments) lists purposes for which classifications may not be put to use. When you have time read sections 17 and 21 of the Bill (the one before the amendments). Let us assume for our present purposes that any classification is done strictly in accordance with the letter of law. Once properly, legally and justifiably classified, what circumstances would amount to public interest if such classified information was to be disclosed contrary to the provisions of the Act?  It seems to me that on the one hand “rule of law” proponents accept that there is information that this state, like others around the world, is justified in classifying and keeping secret. But on the other hand reserve for them a right to disclose the very information and seek refuge under “public interest” which they assert should be contained in the very Bill. How can that be? I don’t know.

Of course there are justifiable criticisms of the Bill. For one, it is poorly drafted. But whether it is as draconian a piece of legislation as it opponents claim? I don’t believe so. Maybe the issue is not the Bill but that this government cannot be trusted with it.  In the meantime, it would be interesting to see what Protection of Information Act 84 of 1982 says about states secrets and why it is not a bad Act and why it should stay on our statute books.

The debate about the so-called secrecy bill should not be made up of conclusions but a serious of statements that resolve themselves logically into one or other conclusion.