It's an elephant dressed up as a sheep, the M&G told Parliament when the draconian Protection of Information Bill was introduced. It went away, but now it's back. Be afraid, writes Sam Sole
The Protection of Information Bill is the most draconian piece of legislation to come before our democratic Parliament. If it is not radically amended by the ad hoc parliamentary committee that is now hearing representations -- including those from the Mail & Guardian and amaBhungane -- it will represent a dramatic incursion into the ideals of open and accountable government, which are cornerstones of the Constitution. Indeed, in its present form, it would face immediate constitutional challenge.
When the Bill was first introduced in 2008, we gave its sponsor, Ronnie Kasrils, the then intelligence minister, the benefit of the doubt. He clearly wanted legislation that would protect legitimate state secrets but be responsive to constitutional imperatives of transparency.
But his drafters let him down and they would have created a law that would have allowed every organ of state -- from government departments and parastatals to the smallest municipality -- to throw a blanket of secrecy over its documents, a blanket nailed down by criminal sanctions.
When the M&G gave evidence to the committee in 2008, we said: "We can't say this Bill is a wolf in sheep's clothing -- we accept that its intentions are honorable. But perhaps it's more accurate to say the Bill is an elephant dressed up as a sheep: from a distance it looks relatively benign, but up closer you realise it is going to develop into something very large and unmanageable with the potential to do a great deal of damage."
The Bill was heavily criticised, including by Kasrils' own Intelligence Review Commission, set up in the wake of the hoax-email saga. The legislation was withdrawn, but it seems now that this had more to do with the fall of the Thabo Mbeki administration than any real appreciation of its flaws. Because the Bill is back -- and it's even more of a monster than before.
This time round we have to question its intentions, given that its shortcomings were pointed out before and the key aspects that will criminalise whistle-blowers and investigative journalists are even worse.
So what are the problems?
Both democracy and the media need and rely on the free flow of information and, perhaps especially, sensitive information.
This Bill will strangle that in several key ways:
Why will there be over-classification?
Why are the safeguards insufficient?
What's wrong with the Bill's "big stick" approach to criminalisation?
Finally, why should unauthorised disclosure be protected from criminal sanction when it is in the public interest?
This recommendation was accepted in principle by Kasrils, but not adopted in the revised Bill.
So what now?
This is a turning point for transparency in South Africa. The Bill can still be changed.
Those who have echoed similar concerns to the M&G include Cosatu, the Institute for Security Studies, the South African National Editors' Forum and Print Media SA.
We all need to urge the committee to have the courage to embrace openness and tame the elephant.
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