Secrecy Bill open to future abuse

FARANAAZ PARKER

Civil society organisations on Wednesday warned that repressive laws, such as the proposed Protection of Information Bill (POI) would come back to haunt the state further down the line.

“A Bill, once it’s passed into law, does not stay in the statute books only for one administration or one term of government. It stays well into the future and history has shown that repressive laws are not usually misused by the administration that passes them but rather by administrations into the future,” said Ayesha Kajee, executive director of the Freedom of Expression Institute.

A good example of this is Zimbabwe’s Law and Order Maintenance Act which was passed by the Ian Smith regime and greatly misused by the Robert Mugabe regime.

“When our legislature passes a Bill into law, they need to consider that if their worst enemies came into power, how would their worst enemies misuse that [law]?” she said.

Other areas affected
Experts say POI is impinging on areas that are already adequately covered by the Protection of Access to Information Act (PAIA), including information that would not pose a threat to national security, such as academic research or commercial information.

Kajee described one example. “We have recently, at the Freedom of Expression Institute, been refused by the Department of Justice access for the public to [the] state’s submission on the Ginwala Inquiry. Because we’ve been refused twice, under PAIA we can now go to court to try to get access to that [information}. That’s what PAIA allows you to do,” said Kajee.

But under the POI, this information could be indefinitely classified and organisations like FXI would never be able to get access to it.

She was speaking at the Gauteng launch of the Right2Know campaign. The event was held at the University of the Witwatersrand’s law school and was attended by a mix of academics, civil society organisations and members of the public.

Also speaking at the event, advocate Pansy Tlakula, the African Union’s special rapporteur for freedom of expression and access to information, said the POI violates regional standards concerning access to information and undermines advances made by the country to protect freedom of information.

“South Africa has ratified certain international and regional instruments and we have to look at whether this Bill speaks to those. My preliminary view is that some sections of this [Bill] are in violation of regional standards,” she said.

Tlakula said the Protection of Information Bill, if adopted in its present form, would undo the good work South Africa has done so far in the area of freedom of information.

Problems with the POl
The preamble to the Bill speaks of the importance of information to national security, territorial integrity and the wellbeing of the republic. It also acknowledges the harm of excessive secrecy and speaks of putting the protection of information within a transparent and legislative framework.

But “a holistic analysis of the Bill however suggests that some parts of its provisions are inimical to the spirit of its preamble,” said Tlakula.

She pointed out that:

• Section 15 provides broad definitions of “national interest” and “national security” which are problematic;
• Section 26 makes provision for the declassification of certain information;
• Section 27 makes provision for the classification of information for an indefinite period of time at the discretion of the head of state; and
• Section 28 allows information to remain classified if its declassification would result in significant harm to the national interest

Tlakula said civil society organisations are adopting a multipronged approach to combat the Bill, which includes lobbying, litigation and raising awareness, “but at some point this Bill will have to pass constitutional scrutiny and the limitations of course will come out”.

The POI’s place in the law
Some say that civil society should stop fighting the Bill and allow it to proceed to the Constitutional Court, where its failings will quickly come to light. But Gabriella Razzano of the South African History Archive believes this would be unacceptable.

“The judicial system is not there to make a decision on every piece of legislation that comes through. If everything had to go through the constitutional court it would start to make a mockery of the public participation process,” said Razzanno.

Kajee agreed saying: “We have a legislature. It needs to do its job properly.”

The Right To Know campaign (www.r2k.org.za) was launched in Cape Town on August 31 this year. Over 350 civil society organisations and 9 000 individuals have joined the campaign so far. Civil society organisations are hoping to launch the campaign in KwaZulu-Natal and other provinces as well. They are also looking at ways to make the petition accessible to people who do not have access to the internet. 

 

The Freedom of Expression Institute and the South African History Archive are Atlantic grantees. 

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