Yesterday, South Africa’s National Assembly passed the “Protection of State Information” bill and it will now move on to the National Council of Provinces for their approval. This bill has garnered criticism as a threat to journalistic freedom and anti-corruption efforts. Protestors gathered for what they dubbed “Black Tuesday” in reference to the apartheid government banning several newspapers in 1977.
The new law would make obtaining, leaking, or communications classified state information a crime punishable by 25 years in jail. Also, federal and local officials would have the authority to classify any documents as secret. Protestors have been arguing that there needs to be a public interest defense clause written in to protect investigative journalists.
Keith Khoza, a spokesman for the ANC released a statement, saying, “There has been strong opposition as it does not contain a public interest clause, but if it had been included, it would nullify the whole act. If people want access to information legitimately, then they can access it through the Access of Information Act. If you can demonstrate it is in the public interest and that it will not affect the function of the state then that information can be accessed. This bill is important because it provides for the classification of confidential information. We believe that any country reserves the right to keep state information classified.”
The national Planning Minister Trevor Manuel also released a statement saying, “There isn’t a single country in the world that runs its business without secrets. I can’t understand why there is an expectation in the minds of some people in the media in South Africa to behave like silly clowns. We have the responsibility to govern this country and don’t ask us to give up that responsibility.”
However, critics of the bill have pointed out that there is a great deal of corruption in South Africa. Recently, two Ministers and the Chief of Police were fired for misappropriating millions of dollars; crimes that would have gone undiscovered if not for the media investigation and reports.
Just recently, two investigative journalists have had charges filed against them for allegedly obtaining their information illegally. They were trying to expose a presidential spokesman for illegally benefiting from an arms-procurement contract. Their story was published, but all of their incriminating evidence was blacked out and censored for publication. In light of this, Amnesty International declared that they would consider journalists and whistleblowers who are arrested under the new law as “prisoners of conscience.”
Section 32 of the South African Bill of Rights actually provides for the right to have free access to information held by the state. The only limitation on this provision is what is “proscribed by law to maintain a free and democratic society.” Do you think the bill fits this definition? Is it fair for government officials to be allowed to determine what is secret?
On its face I do not think that it is too worrisome that there is not a public interest clause in this new law since there is a freedom of information law which people can use to apply for the information. This seems similar to what we have in the US. In order to get information from government agencies you need to submit a Freedom of Information Act request. This provision does not seem to have hindered the flow of information too greatly here in the US. However, what I am not familiar with is what review process South Africa has for the information requests. If they do allow the information to be provided to people that apply there should not be an issue. I do see a reason for the skepticism of critics of the law though. There does need to be checks and balances put in place or some kind of impartial oversight so that information can get out to serve as an additional check on the government.
Considering the current state of politics in the U.S. threatening the traditional freedoms of the citizen, I have little sympathy for the South African government in attempting to enact this legislation. The NY Times article includes a quote by Archbishop Desmond Tutu I find ominous: the potential law was “insulting to all South Africans to be asked to stomach legislation that could be used to outlaw whistle-blowing and investigative journalism.” South Africa, however, unlike the U.S., signed the ICCPR (the “International Bill of Rights”) without reservations, and ought to mind Article 19, which declares that everyone has the right to freedom of expression, including the right to receive information and ideas “of all kinds,” through any media. Such freedom may only be restricted “for the protection of national security or of public order, or of public health or morals.” Withholding information about corruption and misappropriation seems contrary — hostile, even, considering the punishment — to maintaining the public order…or morals.