The Protection of State Information Bill, dubbed the Secrecy Bill, is misnamed on both counts. Contrary to the labels, it will neither assure the safety of critical state information as its proponents claim, nor muzzle the media as its opponents fear.
Let’s start with the fact that during the more than two years that the Bill has been mired in public protest and parliamentary committees, no one has articulated a convincing need for the legislation, other than as part of the process to replace apartheid era laws.
No criminal proceedings against feckless journalists for illegally publishing state information have foundered due to the absence of the new legislation. Actually, there have been no criminal charges against journalists for stolen information for decades, period.
Rather, the Bill, passed by the National Council of Provinces this week, is a retreat by the African National Congress from its own ideals of government transparency and freedom of expression. While it has been moderated in response to public pressure, the Bill still has serious flaws, not the least of those being that the penalties for transgression are more swinging than those of the National Party’s Protection of Information Act of 1982 – up to 25 years in jail, as opposed to 10.
As media attorneys have pointed out, while every state needs to protect critical security information, the Bill shares some of the worst characteristics of its predecessor of three decades ago, such as overbroad definitions of what the national interest and national security are, and the lack of oversight over what will be classified.
And it is, in any case, all in vain. In an electronically borderless world – think Wikileaks – there is no way that the South African government is going to prevent with this Bill the media from disseminating damaging information.
As ANC eminent gris Pallo Jordan warned two years ago, attempting to muzzle the modern media is a “fool’s errand” in the light of the internet. The ANC was backing itself into a “lose-lose situation” where it was at risk of losing its credibility on media freedom and losing a constitutional challenge, and “if the movement pursues this path … those who want to rubbish us will have every right to do so”.
It is, of course, not state secrets that President Jacob Zuma’s government is trying to protect. Not unless you define, as his government does, the use of hundreds of millions of rands on his private home, as a state secret. Not unless you define, as his government does, the possible subverting of the National Prosecuting Authority to save him from criminal charges for corruption, as a state secret.
It’s not about state secrets, it’s about embarrassing leaks – most often from one or another ANC faction, trying to sideline its rivals – and about whistleblowers who lay bare layer upon layer of cronyism and corruption, to which the government would rather turn a blind eye.
There has been resistance from within the tripartite alliance, from the Congress of SA Trade Unions, and within the ANC itself. ANC MPs Ben Turok and Gloria Borman risked expulsion from the party when last year they were the only two on the government benches to vote against the Bill. That was also the first time that every opposition party voted against an ANC measure.
Former intelligence minister Ronnie Kasrils, who prepared a milder version of the Bill in former president Thabo Mbeki’s government, has been particularly outspoken, saying that the Bill had forced him to become a “social activist”. Joining the Right2Know protests outside Parliament, he slated the Bill as being product of a “security paranoia” that made him fear for the Constitution and the country.
The Bill might become an Act, but has about as much chance of shielding Zuma and the ANC’s dark secrets as Blade Nzimande’s fawning proposal of a law to “protect the dignity” of the president would have of stopping the unkind sniggers.