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November-December 2010
Vol. 35, No. 6

 

South Africa: Protection of Information Bill

South Africa finds itself wrestling with some of the same questions that have plagued the United States for many years and increasingly since the September 11, 2001 terrorist attacks. Transparency and citizen participation are necessary hallmarks of democracy. Restrictions on public access to government-held information should be rare, carefully defined and clearly necessary for legitimate national security reasons. Outrage and intense debate followed the introduction in the South African Parliament of the Protection of Information Bill. The following article is based on the Southern African Catholic Bishops’ Conference Parliamentary Liaison Office Briefing Paper 244 (September 2010) and on the submission of Bishops’ Conference to the Parliamentary Ad-hoc Committee on the legislation. Maryknoll Office for Global Concerns intern Rosine Bogoto contributed to this article.

In a constitutionally democratic and open society such as South Africa any attempt to curb the free flow of information should be treated as the exception, not the norm. Access to information is not only important for transparency and accountability but for the realization of all fundamental human rights. Because of this, the Protection of Information Bill has been a hot topic for discussion since it was introduced in Parliament in March this year.

The main area of concern is that the definitions of “national interest” and “information” in the bill are too wide and vague. Clause 11 of the bill states that the “national interest of the Republic includes but is not limited to all matters relating to the public good and all matters relating to the protection and preservation of all things owned or maintained for the public by the state.” This does not make clear what is included and what is excluded. The same can be said of the definition of information.

Another problem is that the bill is not consistent with whistleblower legislation (the Protected Disclosures Act of 2000) or with the public interest overrides in the Promotion of Access to Information Act of 2000. The latter acts recognize that sensitive or “secret” information can be exposed if there is legitimate reason to believe that it benefits the public to do so, for instance where the intention is to expose corruption, human rights violations or environmental threats. This has the advantage of placing the onus on the government to justify why certain information must be kept secret. In this bill, however, there is no “public interest override” as it is known, and the onus is on the public to prove why classified information should be made public. This is flawed, because in a democracy government holds information on behalf of the people, and the default position must be that it should be withheld only where it is demonstrably in the public interest to do so.

One of the positive aspects of this bill is that it has caused civil society to rally together for a common purpose. A coalition of over180 organizations and 400 individuals have placed significant pressure on the government to back down. The main demands of the coalition include that the bill be substantially redrafted in an inclusive and transparent manner and that it reflect the ideals of the Constitution which emphasize the importance of access to information.

Particular concerns were identified in the submission of the Parliamentary Liaison Office to the Parliamentary Ad-hoc Committee. One is the bill’s tendency to lean towards excessive secrecy. It is important to remember, they wrote, that excessive secrecy actually harms security, and that the flow of information is necessary to promote security, confidence and trust between the State and the citizenry. A piece of legislation such as the current one requires the legislature to strike a balance between the competing interests of openness and access to information on the one hand, and safeguarding the genuine national interest and security on the other.

Apart from the over-broad nature of this definition, the notion of national interest is also tied to certain contestable and ideologically-loaded values such as economic growth, free trade and a stable monetary system.

There is a grave danger that this over-broad definition will lead to state information being classified too readily, denying the public access to state information and thereby considerably reducing the space available for public participation.

Secrecy must be seen not as an ordinary, everyday means to protect the national interest, but as something extraordinary and unusual.

For further information, contact the Southern African Bishops’ Conference Parliamentary Liaison Office.

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