Consign the Info Bill to the Dustbin of History

by Aug 5, 2010All Articles

By Terry Bell

In 1993, as the prospect of a non-racist democracy loomed, the last apartheid president, F. W. de Klerk and his minions, ordered the destruction of tonnes of files, microfilm, audio and computer tapes and disks.  Information about state-sponsored murders, of corruption and of many more mundane activities of the previous regime, disappeared forever.

This bout of destruction and others in earlier years was deemed to be in the national interest and carried out in accordance with existing laws, laws that remain on the statute book. Obviously such laws should long ago have been scrapped to ensure, in accordance with our democratic constitution, the transparency necessary for the state and its functionaries to remain accountable to the population at large.

According to ANC MP Cecil Burgess, who is the chair of parliament’s joint standing committee on intelligence, the need to protect and preserve information is the motivation behind the Protection of Information Bill. It would consign the 1982 apartheid era law to the dustbin of history.

Unfortunately, it will do much more: while it may — and the operative word is may — halt the destruction of documentary evidence of state activities and those of entities linked to the state, it will also shroud them in as much secrecy as the apartheid state did. It proposes, for example, that a range of information available at various levels of the state be classified as either “confidential”, “secret” or “top secret”.

Without defining the national interest or the “public good”, this Bill makes secret anything that those in authority decide is damaging to the national interest or to the public good.  It also removes the cardinal defence for publication of information: that it not only be true, but in the public interest.

This point about the public interest was accepted in 2008 by the then minister of intelligence services, Ronnie Kasrils, when the Bill first came up for public debate.  But the revised Bill now being debated, makes no mention of the public interest.  Instead, it proposes criminal sanctions for unauthorised possession or disclosure, even when there is no intention to prejudice the undefined national interest.

A prison term of up to three years is proposed for any official who “leaks” such information — and three to five years for the person to whom it is leaked and who does not immediately deposit any such evidence with the police. Anyone — for this, read “journalist” or “researcher” — retaining such evidence is liable to a prison term of three to five years.

In this way, the actions of whistle blowers and all journalists who expose cases of maladministration, corruption and wasteful spending can become subject to legal sanction.  At the very least, such legislation will intimidate even the bravest whistle blower and cause journalists and media owners to think twice before exposing wrongdoing in high places.

Yet, for the sake of a healthy parliamentary democracy, it is essential that we know how our tax money is spent; what government does and who it does it with. After all, it is only through the free flow of information that nepotism, cronyism and other means of illicit enrichment, become known and can be defeated.

These points have been made in numerous submissions on the Bill. And they have been dismissed by the government’s chief law adviser, Enver Daniels, as “emotional and hysterical”.

This far from being the case. The submissions from media houses and groups such as the SA National Editors’ Forum have been uniformly constructive and well researched. 

And these have made it clear that the Bill’s provisions would strangle the free flow of information that a healthy parliamentary democracy requires. We may never again find out about RDP houses that were paid for, but never built, grossly inflated tenders handed out to friends and family, and the failure to provide promised schools, clinics and hospitals.

In my own case, I find it ironic that a lot of the body of work, for which I was last week honoured for “courageous journalism” by my colleagues and the print media, would be illegal should this Bill become law. And much of the documentary evidence I have received over the years would also fall into the category of either having to be immediately destroyed or handed in to my local police station.

For example, the name, rank and background of the second in command of military intelligence and his prospects for promotion was, at the time I disclosed the information, already regarded as at least confidential. But it was certainly in the government’s, as well as the public, interest that the background was disclosed.

And it was surely in the public interest to know that the Chinese embassy contributed R66 000 to a secret “war chest” account held by the general secretary of the SA Communist Party, or that a government minister was party to a minuted decision to lie to the media about 34 “missing” boxes of Truth and Reconciliation Commission documents. Yet both these cases involved documents that, under the proposed regime, would almost certainly have been considered at least “confidential”.

It is small consolation that, should the Bill, in its present form become law, it will almost certainly prove impossible fully to implement. As such, it amounts to a futile, probably misguided and possibly even sinister attempt to curtail the free flow of information. 

The government argument that the Bill is trying to balance the right to privacy with the right to a free flow of information is disingenuous. If the dignity of any individual is compromised by the publication of information that is untrue or clearly not in the public interest, the laws of defamation and libel come into play.

Another argument that has been raised is that it is too expensive to fight a libel or defamation case. This too is disingenuous: quite apart from the fact that those who might feel they have been defamed are almost always those with deep pockets, the legal processes for defamation and libel could, if necessary, be made less expensive.

So this Bill is not only a threat to journalists and the media; it is a threat to the very fabric of democracy; to the right of every citizen to know who is doing what with our tax money and how our country is being managed.

As it now stands, the Protection of Information Bill should join the 1982 apartheid legislation in the dustbin of history.

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