Will South Africa Pass the Protection of State Information Bill?

POIB
By Sarah Logan

Tuesday 22 November 2011 saw the controversial and much dreaded Protection of State Information Bill (POIB) tabled before the South African Parliament. Spearheaded by the ruling African National Congress (ANC), its original objective appears to have been to replace the apartheid-era Protection of Information Act of 1982, so as to bring South Africa’s state information legislation more in line with the country’s Constitution and democratic principles.

Under South Africa’s new constitutional dispensation, every South African citizen has the right to access information held by the state. This right is enshrined in the country’s greatly renowned and respected Constitution, which, furthermore, requires that specific legislation be enacted to give effect to such right. The Promotion of Access to Information Act was enacted in 2000 in this regard. As with other rights enshrined in South Africa’s Bill of Rights, the right of access to information can only be limited by a law of general application and if such limitation is considered to be reasonable and justifiable in an open and democratic society.

There was no disagreement concerning the necessity for the government to protect certain information from destruction, loss or unlawful disclosure – all states possess information for which disclosure is prohibited for legitimate reasons. Nor was there any resistance to replacing apartheid-era legislation with legislation more in line with South Africa’s Constitution; indeed, such a move was welcomed.

It was, however, with bewildered shock that people read the first draft of the POIB, released in March 2010, which included complex classification arrangements for information deemed to be in the undefined “national interest.” A potentially indeterminable number of officials from over 1000 organs of state would be able to classify information, and those who unlawfully possessed or disclosed classified information would face jail terms of up to 25 years (without the alternative of a fine), even if such disclosure was shown to be in the public interest.

These penal provisions posed particular threats to whistleblowers and investigative journalists attempting to expose corruption, fraud, maladministration and other wrongdoing within the top echelons of government, as well as affecting society at large. By failing to provide for a public interest defence, the POIB flew in the face of the South African government’s purported commitment to openness and transparency in government and created a guise behind which government officials could cloak a myriad of wrongdoing. Civil society reacted with outrage, immediately condemning the POIB and establishing the Right2Know Campaign to oppose it. 

Since 1994, the independent media in South Africa has uncovered rampant corruption and other wrongdoing within all levels of government. Such exposes have tarnished the ANC’s reputation and have resulted in the ANC increasingly squaring themselves off against South Africa’s independent media. It seems as though sometime during the drafting process, the ANC’s preoccupation with security secrecy and growing antagonism with the independent media shifted their aim from replacing apartheid-era legislation with a more constitutional version to seizing the opportunity to clamp down on the possession and disclosure of information damaging to the reputation of the ANC.

In the wake of the public outcry to the first draft of the POIB, the Ad Hoc Committee responsible for drafting it undertook a public consultation process in order to garner proposed amendments from interested parties. A number of different organisations, lobby groups and other parties made representations in this regard and many amendments were made to the POIB, significantly improving it.

For example, the undefined “national interest” ground for classification was changed to the more restricted and accepted “national security” and jail terms for those unlawfully possessing or disclosing classified information were reduced. Furthermore, the organs of state empowered to classify information were limited to only the police, intelligence and security services. However, several key aspects of the POIB remained unchanged, including the lack of a public interest defence. The ANC’s refusal to concede on this point in particular has resulted in many considering the public consultation process to be no more than a sham. 

Opposition parties unanimously came out in strong condemnation of the POIB. They vowed to vehemently oppose it in the event that the ANC tabled it before Parliament, but it was not expected that the ANC would do so with it in its current state as there remained great public unhappiness over the exclusion of a public interest defence. Yet the ANC tabled it for voting nonetheless.

A day of national protest, dubbed “Black Tuesday”, was called to coincide with the POIB being voted upon. Protests were held nationwide, from Soweto to Cape Town, and all South Africans opposing the POIB were encouraged to wear black as a sign of their opposition. Black was chosen to represent the blackened out sections in articles signifying the concealment of censored information.

Despite opposition speakers’ appeals to their conscience, and every opposition Member of Parliament voting against it, ANC members voted en masse for the POIB and used their majority to steamroll it through. Although technically not against the letter of South Africa’s legislative process, the ANC’s conduct was undeniably against the spirit of such processes.

Widespread public fury broke out after Parliament’s passing of the POIB, with South Africans taking to various social media forums to vent their anger and disappointment.

The POIB is still a long way from becoming law, having still to pass through the National Council of Provinces (NCOP) and the President. Either the NCOP or the President could insist that further changes be made. Should the POIB be signed into law in its current form, there will be no shortage of challenges in the Constitutional Court. Should it fail constitutional muster, the Constitutional Court can choose to either strike it down in whole or in part, or refer it back to Parliament for necessary amendments.

Although there remains a real fear that the POIB may become law, it is apparent that South Africa’s public anger is grounded in a belief that the ANC are beginning to betray the values and principles upon which both the organisation and South Africa were founded. With the ANC becoming increasingly hostile towards South Africa’s independent judiciary, and having now taken clear action to subdue the independent media, many South Africans are becoming uncomfortable with the ANC’s growing resentment towards constitutional checks on its power. By railroading the POIB through Parliament, the ANC broke the trust of many South Africans’ respect for the organisation that liberated the nation from apartheid is now being replaced with suspicion and distrust. 

 

Sarah Logan is currently practising as an attorney in Johannesburg, predominantly in commercial law, although her interests and true passion lie in working towards the attainment of democracy and good governance in Africa, and the achievement of the social and economic betterment of all of Africa’s people.

 

30 November 2011