South Africa moves ahead with bill to limit freedom of information

By speeding up the vote on a controversial Protection of Information bill this week, South Africa’s ruling party may be close to dramatically restricting the rights of citizens to monitor the actions of their government officials.

As currently written, the “Protection of Information” bill would grant the government broad powers to classify documents for reasons ranging from national security to protection of state possessions: everything from top-secret weapons plans for the South African National Defense Forces to the allotments of elephant feed at the Johannesburg Zoo. The bill does specifically forbid the classification of documents that are merely embarrassing or that reveal incompetence, but it also authorizes prosecution of journalists found in possession of documents labeled as “secret,” and media groups argue that this effectively makes investigative journalism illegal.

“The governing party has decided to set aside its earlier willingness to negotiate with other parties and civil society and now seem determined to ram this through parliament,” says Nic Dawes, editor of the Mail and Guardian, a Johannesburg-based investigative weekly. “This bill will criminalize investigative journalism and civic activism.”

Initially proposed in early 2010, the Protection of Information bill and a separate plan to create a Media Appeals Tribunal to punish journalists for errors in reporting were both shelved after the controversy over the two bills led the ruling African National Congress to shelve them for further study and consultation. But after several meetings, the bill has been reintroduced in parliament barring virtually the same activities, and civic activists, media organizations, and even the ANC’s own coalition partner, the Congress of South African Trade Unions, have cried foul once more.

“As it stands, this bill will restrict media freedom,” said COSATU’s spokesman, Patrick Craven, in a statement. “It will also severely limit the ability of organisations like ours to hold government accountable or to support government in working for a better life for all. The bill will drive a wedge between the state and the people it is supposed to serve.”

The current draft being voted on in parliament, clause by clause, would ban the acquisition and publication of documents classified as:

• "Confidential," where publishing the information would be “harmful” to national security or to South Africa’s relations with other countries;
• "Secret," where publishing the information may "endanger" national security or "jeopardise the international relations of the Republic"; and
• "Top secret," where publishing may cause “serious or irreparable harm” to national security or could cause other states to “sever diplomatic relations with the Republic.”

South Africa’s Constitution, written after the end of the racist apartheid government, is deemed one of the most liberal legal frameworks in the world, and guarantees free expression. It was, after all, the ANC that fought for such freedoms in its long period of struggle against the previous government. But efforts to change the laws to ban leaking of documents in the past year are part of the reason why Freedom House recently downgraded South Africa in its Freedom Index.

Curiously, some African countries – notably Kenya and Nigeria – have moved in the opposite direction of South Africa, enshrining the freedom of information. This week, Nigeria enacted a Freedom of Information law.

Yet some analysts argue that the Protection of Information Bill, while onerous, is not the first step toward dictatorship that it is often portrayed to be.

“The best thing that could be done to this bill is to throw it in the rubbish bin,” says Steven Friedman, director of the Democracy and Governance program at the University of Johannesburg. “But there is no way this legislation is going to shut down investigative journalism. We have heard about the horrendous clauses in this bill, and they are horrible, but we also have clauses that say you can’t classify information in order to cover up government incompetence, or to protect the government from embarrassment.”

Any government official who tried to prosecute a reporter for leaking documents showing corruption or incompetence would only end up seeing that evidence of corruption or incompetence introduced in a criminal trial, and then be reported in the media, says Mr. Friedman. The real victims of this law aren’t the media, he adds, but rather the much poorer civic activists in informal settlements who would be affected by this same restrictive law, but not be able to hire lawyers to fight for their right to information.

“This is about the fundamental right of the vast majority of South Africans to know what is being done to them, rather than the protection of the rights of a rather privileged group of people” in the news media, says Friedman.