By Sam Sole
So. Thanks to the Financial Mail we now know that the outcry over the Protection of Information Bill is an “overreaction” from people “obsessed” with openness and the availability of information.
Chillingly that is the view of the man tasked with ushering this dangerous piece of legislation through parliament, the honourable Cecil Burgess, chair of the ad hoc committee considering the Bill — and also, as it happens, the chair of the Joint Standing Committee on Intelligence.
It is truly worrying that Burgess, a lawyer, can show so little understanding of concerns over the Bill’s foreseeable effect of drawing an iron curtain of secrecy around much government activity.
Openness, in case he had forgotten, is one of the foundational values of the Constitution. It’s there in the preamble which says the Constitution is intended to, “Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law.”
It’s there in the founding provisions, which entrench “Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”
And it finds expression in the Bill of Rights, which protects freedom of expression, a free media and access to information.
It is entirely proper that we be “obsessed” with defending the foundational values of our democratic state, and it is frustrating that the man charged with ensuring that legislation complies with those values apparently regards them as somehow annoying or tiresome.
It is also obvious that the media will be at the forefront of expressing concerns over the Bill.
Legislation which seeks to regulate and restrict the disclosure of state information, particularly sensitive information, goes to the heart of the relationship between the state and the media.
The media interest in and concern at this Bill is not merely one of convenience or inconvenience, but one of constitutional importance. As the Constitutional Court has pointed out, “The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the right to freedom of information are respected.”
“The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate.” (Case CCT 53/01, at paragraph 22)
But the constitutional mandate of the media goes further. Its mandate is not merely passive reporting, but active inquiry and investigation. As the Constitutional Court pointed out in the same case: “Furthermore, the media are important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require.
As Joffe J said in Government of the Republic of South Africa v Sunday Times Newspaper and Another 1995 (2) SA 221 (T) at 227H – 228A: “It is the function of the press to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators. The press must reveal dishonest mal- and inept administration … It must advance the communication between the governed and those who govern.” (Case CCT 53/01 at paragraphs 23 and 24).
Access to information is a right which fundamentally underpins the Constitution’s foundational value of responsive and accountable government — both directly, in the sense of accessing information about what government is doing or not doing — and indirectly, in providing the very means for informed debate and political decision-making.
It is notable that not one of the mostly highly critical submissions to the committee argues that there should be no secrecy in government. All of them concede that where disclosure would be likely to harm the security of the country or its international relations, government should be entitled to protect such information via classification.
But the Bill goes so much further as to allow the classification of virtually any information whose disclosure might be embarrassing — and at every level of government, from local authorities to parastatals, to departments that have absolutely no connection to national security.
The Bill includes a very wide discretion to classify commercial information held by the state, meaning the disclosure of information about rigged tenders and other sorts of corruption would be made punishable by imprisonment, because it is likely that such information would be classified.
It is even entirely possible, under this Bill, that details of a minister’s hotel accommodation might be classified, meaning the M&G reporters who disclosed them would face 3 to 5 years in jail (if the information was classified at the lowest level of “confidential”).
Defenders of the Bill say there is prohibition in the Bill against classification to cover up wrong-doing, but this is no protection against misuse at all.
The discretion in the Bill is so wide as to allow, to take the above example, the classification of the minister’s hotel records on the basis that their disclosure may pose a threat to his personal security.
What the submissions to the committee also show is that the Bill goes way beyond comparable legislation in other democracies. And yet the minister of state security has not been able to point to any looming threat which justifies such extreme measures.
Indeed, we have survived the past 15 years with apartheid-era legislation that the minister himself concedes has aspects that are probably unconstitutional and therefore unenforceable. The current regulations on classification — the Minimum Information Security Standards — are just a government policy, and are currently not enforceable in law, except against government employees as part of their terms of employment.
The best the minister can do is point to the disruptive influence of so-called “information pedlars” and make reference to the Browse Mole report produced by the Scorpions, which made apparently erroneous claims about foreign governments backing Jacob Zuma to topple Thabo Mbeki.
It is striking that the Browse Mole report — of which the minister, his team and Mr Burgess have been highly critical — was only investigated and “exposed” after it had been leaked to Cosatu and from Cosatu to the media.
Now such leaks (the Browse Mole document carried a top secret classification) would be punishable under the new law by imprisonment of up to 25 years.
The Bill, if allowed to stand, will have a terrible chilling effect on the flow of information and on the media.
It comes on top of renewed ANC calls for a media tribunal and an ever growing set of government gags — on police, prosecutors and other officials — telling them they must not speak to the media or provide the media with information, even when it is information to which reporters are legally entitled.
The mistrust of the media has become so ingrained that one of the committee members, ANC MP Hlengiwe Mgabadeli, had to remind the committee at one stage that the media were not foreigners: like the members of the committee, they were South Africans, “they are involved in what we are trying to defend”.
Indeed.
It is also ironic that the President’s legal team should have been in jail if the law was in place and enforced (even the current version) properly during the Zuma trial.
This has nothing to do with protecting the state and everything to do with protecting politicians and their buddies.
We need to jealously protect our media-freedom as this is nearly the only way to maintain a vigorous opposition.
The DA is doing their job in parliament and our ‘free’ [so far] press is the other cornerstone of holding the ANC accountable and in check.
The ‘blingsters’ must be exposed, arrogance and incompetence needs to highlighted and straightforward theft needs to be reported – again and again if necessary until we reach a point where politicians and functionaries are actually doing the job they get paid for without enriching their vast families unto the 10th generation!
That this is unpalatable to the ‘more equal than others’ is entirely understandable but that’s just tough on them!
Those of us who have paid our taxes faithfully for decades need a watchdog, an alarm-raiser, a finger-pointer and town-crier to shout it from the rooftops when things are out of control, when greed and arrogance rules and when misleading cries of ‘racism’ are disguising the true intent of the scamsters and cheats riding the wagon of ‘past suffering’ and ‘I did not join the struggle to remain poor’ brigade.
You – the media – are this ‘hound of hell’ that snaps on the heels of ‘our leaders’ and bully for you and all of us need to support you to the hilt and shout in unison “The king is naked!”.
The loss of local journalistic standards have turned our political establishment into a media circus.
Transparency works both ways. So its of paramount importance for all South Africans to know who really owns the major daily newspapers (Sunday Times, Tribune, Cape Times, Daily News, Star, Mercury News, Business Day, Witness, Beeld, Rapport, City Press, Argus…) and the radio stations (702, Highveld, Cape Talk, East Coast, Jacaranda….) and tv (etv, M-Net, DStv…) in our country.
Maybe by answering this question, we can understand why there has been a sudden degradation in journalistic standards in SA media. During the World Cup, it was our OWN media that created hoaxes and hysteria around crime to scare away tourists. After the World Cup it was the DA leadership and their cohorts in the media that predicted xenophobic Armageddon about to engulf SA to dampen the euphoria after an amazingly successful World Cup.
Even though our local journalists are not foreigners, they sure act like foreigners!!! This shameful behavior of our local media has unfortunately forced the hand of the government to introduce this bill and the noose will tighten even further if the media continues to act irresponsibly and not create watchdog organizations to police themselves – like in every other free democracy in the world!
It seems to me that the ANC is hell bent on holding on to power “by any means necessary”, even going to lengths of undermining the constitution and media freedom. The extent to which their shenanigans have been exposed is a real threat to their holding on to power “until Jesus comes” and instruments like this bill and the proposed media tribunal are what they are using to continually intrude on our hard fought for liberties in the name of hanging on to power indefinitely. I for one, am relieved that they did not get the two-thirds majority they sought in the previous elections because these are signs that had they got it, we would be well on our way to changing the constitution outright. They didn’t do it before because they thought they would always have 2/3, but now the tide is turning and to a large extent due to the tireless work of a vigilant media. People like Jackie Selebi, the Oilgate saga and numerous other indiscrepancies on the part of the ANC have been exposed by the free press which we thankfully still have in SA, in an environment which is becoming increasingly hostile. This bill, the proposed media tribunal and other efforts of the ANC at undermining media freedom must not be allowed to prevail, lest we become another basket case like the rest of Africa. These ANC bloodhounds must be stopped at all costs.
CHILLING !!
Rectify the problems of Endemic corruption, greed, nepotism, croynism, cadre employment and blatant self-enrichement !!???…NO !!…not in the vocabulary of the ANC Government !!…. RATHER HIDE IT under a “Bodygaurd of Lies” !!
The quicker the ANC collapses..the more chilling and draconian, the passing of restrictive legislation will become. Viva ANC/ZANU PF…they shout..,”Let the LOOTING CONTINUE” !!
Mr. Burgess and his fellow comrades, who clearly have something to hide (or did I misinterpret the whole Browsemole saga?)continue to play secret games with the lives of their fellow South African’s with Cold War warrior abandon.
They would do well to take note of the Washington Post’s investigation into the abuses and excesses by the US’s military-intelligence complex, released yesterday. The danger of the intelligence structures becoming a fourth (and sinister and secretive) branch of government are ever present.
As you rightly point out, legislation and the Constitution are all that stands between free and open democracy and a police state as frightening as any other in history.
Anyone familiar with recent events in SA, including illegal recordings and grabbing political control via intelligence operatives, will know how thin the line really is!
@Dave Harris
The vast majority of the media outlets whose “true” owners you query are public companies listed on the JSE.
The shareholding is a matter of public record.
If you want to know who they are, contact the JSE, order a copy of McGregors “who owns whom” or buy a few shares.
If you are implying that the owners of the shares are actually proxys and you want to establish the true owners, good luck (I thought only ANC tenderpreneurs pulled that trick?).
Enough with the innuendos and conspiracy theories already!
The hysteria around crime is not always hysteria – it often comes from sober reflection of the actual statistics.
Media sensationalism is a worldwide phenomeneon – the british and US press was responsible for far more SWC crime hysteria than local SA media.
The warnings about a new round of xenophobic attacks have been around for months and have been raised by NGO’s and various sections of civil society.
Your obsession with the DA being the bad guys is a joke.
Our ANC government is the one that seeks to laugh off / explain away the xenaphobic attacks as “normal crime”, just as is the case with farm murders.
If you spent any time in the townships, you would know that these rumours have been circulating for months. Surely you are not suggesting that the DA has made such inroads in township areas that they are capable of implementing a coordinated campaign of disinformation and scare-mongering?
Secrets never cover more or less than skeletons in someone’s cupboard.
What is the point of voting if we don’t know ‘who’ we are voting for?
This is something we should all feel entitled to strike about.
As it is, the media does not have the power to create enough embarrassment to effect follow up.
This is all about flicking an irritating mosquito off your leg even when you’ve taken the prophylactics and sleep under a mosquito net; you’re not likely to suffer from malaria anyway.
Gee Dave Harris, it is amazing how all nationalists use the same language and tone. You and Josef Goebbels would have so much to talk about…
@Peter L
“The vast majority of the media outlets whose “true” owners you query are public companies..”
What BS! A single media conglomerate owns and controls ALL those newspapers, radio, and tv channels I mentioned. McGregors “who owns whom” is mere window dressing to cover up the ultimate owners and controllers of SA media. C’mon buddy, we all know the power of the media and amount of money the apartheid regime poured into it. We welcome the Gupta group who will finally begin to reform our media circus through some good old fashioned competition.
The National Party’s used many exit strategies to convert those apartheid information propaganda institutions into legitimate “business” and stacked the judiciary with white apartheid judges to slow down transformation to a crawl.
Now, after almost TWO DECADES since liberation:
Why are over 90% of the CEOs still white?
Why is over 80% of PRIME real-estate still held by the previously privileged?
Why do OUR OWN journalists scare away tourists during the WC?
etc. etc. etc.
@Bibliophile
Actually, its common knowledge that the apartheid regime used Josef Goebbels as their role model. So I think you would have MUCH more to talk about eh?
Dave Harris, the scarry thing about your words and arguement is that it mirrors EXACTLY what Nat Party spoksmen said/wrote back in the Apartheid days when they were building up to tabling more gagging legislation or just press bashing. Their view was that SA’s problems were only caused by the bad media which is exactly your point now – how we never learn from history.
Also why dont YOU investigate who owns our media, you might be surprised at how much is ‘Black’ owned (dont exclude the SABC) and dont forget to check the colour complection of news rooms + reporters it might also surprise you unless you wish it to be only 100% Black.
Brent
Freedom of information is the corner stone of a truly democratic state. Without freedom of information the individual vote becomes meaningless because the voter would be incapable of making a meaningful choice between candidates when casting their ballot.
@Dave Harris: So you are not arguing that you and your government indeed have much in common with one of the worlds most lethal criminals, Josef Goebbels?
Note you defended your stance and your governments actions by comparing them to the apartheid regime’s actions. This is old, most of us are not interested in living under a new regime that works like the old one.
It makes sense for ruling elite to emulate the old regime and hence you are paid to say what you say, but I think the rest of this country is sick and tired of one party states hell bent on crushing dissent by any means possible!
Shorter Dave Harris: “Free media bad.”
Dave Harris, it is not common knowledge that the Apartheid regime used Gobbels as their role model, they in fact used the Soviet/E. European model. I attended a meeting many years ago where a Zarn Steward, head SABC English ‘propaganda’ spoke and he when asked about SABC’s bias retorted eloquently for 30 minutes how they followed the Soviet model of pushing their point exclusively, “that was how propaganda worked.”
Your rants are closer to Gobbel’s sledge hammer method of telling as big a lie as possible than the Soviet’s subtle propaganda methods.
Brent
I’m terribly disturbed by this bill. I hope it turns out to be utterly unenforceable in light of to the constitution – a document that is apparently slightly regarded by the ANC and its supporters.
Where you have a government that has been steeped up to the armpits in corruption since the arms deal, it is only natural that the media would report in a way that can be interpreted as “biased” against it by loyalists. Thievery and lying by our democratically appointed leaders is extremely newsworthy.
If government ministers or employees are lied about in the press, they may sue (as Thabo Mbeki tellingly did not when it was reported that he received thirty million through the arms deal).
Honest people have little to fear from a free press. Those who will benefit from this bill are, however, not honest people.
They seldom have to account to a court for their betrayal of the public’s trust. Will they now not have to account to the public either?
The Nationalists are dead. Long live the nationalists.
@brent
“Their view was that SA’s problems were only caused by the bad media which is exactly your point now”
The apartheid regime CONTROLLED EVERY ASPECT OF THE MEDIA.
Todays SA media conglomerate is a spinoff of that regime.
Its common knowledge who sided with the Nazis during WW2. Josef Goebbels was also a huge fan of white supremacy, just like your old National Party…remember?
I think the lesson here is never to trust a political party whose name includes the word “National”.
Interesting.
Predictably, most follow the knee-jerk, ‘slippery slope’ arguments. I suspect this line of argument denies us the nuance at the core of the debate. I much prefer Dawes’ argument re ‘the false dichotomy’. I actually found this argument particularly potent.
The truth-as usual-lies somewhere in the middle. One can’t glibly dismiss Dave’s points for e.g; to the extent many in the media are guilty of pursuing personal agendas, character assasinations etc-there must be a balance. The courts may writ financial compensation but they cant restore dignity. The case brought by Gumede to the Ombudsman against the M&G remains instructive in this re.
This said, my own instincts are to be wary of this bill despite my staunch ANC support. However, I also think Dawes et al need to give us comfort they aren’t fighting for the state to remain accountable while their sector is not.
According to the rankings of Freedom House, we are at present just clinging to a ranking of “free”, down to 66 in the world.
This development will push us deeply into the “partly free” category.
What astonishes me about Mr Harris is his crude view of history. The M&G, the Cape Times, the Rand Daily Mail, the EP Herald, many others, were brave opponents of the old regime. In the eighties they were censored, news was banned, journalists were banned. Helen Zille was a journalist then, and exposed the torture of Steve Biko, in the 70s. And remember Donald Woods? Mr Harris doesn’t know, or pretends not to know, what he’s talking about.