South Africa’s new Protection of Information Bill entrenches secrecy
and is a threat to society, argues Rashweat Mukundu, Programme
Specialist for Media Monitoring and Research of the Media Institute of
Southern Africa in Windhoek, Namibia

Rashweat Mukundu writes:

The article in the Mail & Guardian a few weeks ago, by Howard Varney of the drafting team for South Africa’s Protection of Information Bill, attempts to calm media fears in South Africa and indeed in the region that there is no regression in the legislative protection of media and freedom of expression rights in South Africa. Instead we are told South Africa is progressing well in protecting access to information
and media rights.   I beg to differ on a number of issues, mainly the timing and the intentions of this proposed law in the context of South Africa.

The article dwelt on the legalities and painted too rosy a picture, devoid of the reality of policy and political practice in South Africa, at least as demonstrated by the ruling elite in the past few years. The past few years have shown a ruling elite sinking slowly into its own shell, using defamation laws and the polishing up of state secrecy laws from bygone eras to protect state officials, government departments and senior politicians.

Business executives with connections to the ruling elite, some of them accused of involvement in shady corrupt deals, have confronted the media head on seeking the protection of the law to keep their cupboards shut.

The critical context to be taken into account in looking at the proposed Protection of Information Bill includes the successes of the South African media in exposing alleged and real corruption cases at high level.

These involve, to mention but a few, the Shabir Shaik cases, the Zuma case, the Selebi case, and corrupt multi-million and even billion rand deals involving a plethora of personalities linked to the ANC. This is the political, social and economic context in which the proposed Protection of Information Bill has to be looked at.

It is a context in which the ruling elite has been put under pressure by media exposes to be accountable, it is also a context in which ordinary South Africans – be they those working in government, the private sector, security arms of the state and others – have equally played a key role in releasing information on corruption that has been exposed in wide ranging and well researched articles, some of them world-class.

This to me is the real reason why the Protection of Information Bill is coming at this particular time. It is well and good that Varney says the bill is not targeting journalists, but journalists are not super machines that work alone, journalists need sources, in cases high-level sources that have access to documents some of which are in the public interest but will now be protected as state secrets. While the media might be protected, and let me emphasise, might be protected from the Protection of Information Bill, high-level sources are likely to feel so threatened as to cut any contact with the media.

So invariably the proposed law cuts the source of news and hence achieves the goal of the corrupt and powerful in South Africa, that of abusing the state to protect their own personal interests. More importantly, the releasing of state information in many respects does not require the ironically titled “Protection of Information Bill”.

State information should, as a matter of practice, be made accessible to the public through various means. Such  means include among others, a properly written Access to Information law, that places obligations on the state to provide means through which state information that is in the public interest is released, and also how public institutions are made accountable through a commission as to whether they are meeting that obligation.

Varney says: “Documents that disclose abuse of fraudulent use of state resources may not be classified because such classification would not be in the nationals interest.” But one wonders who will be there to listen to the debates of what constitute a threat to national interest in the closed doors of Union Building or Luthuli house, and more critically would those violating the law willingly hand over documents when they have the power to classify that information as state secrets. Checks and balances in the application of such a law are always difficult especially if those bestowed with implementing the law are in fact at the centre of the corruption, or they are political party commissars deployed to protect sectional interests.

So instead of a Protection of Information Bill, South Africa instead needs a revised Access to Information law that is straightforward in its intentions and meet all the good things that Varney says the Protection of Information Bill would do. One cannot dispute that exemptions are always part of an access to information law, but exemptions need not be vague and subject to abuse and any interpretation by public officials. Again there is no need for a new law to promote this, but instead a relook at the obsolete Access to Information law. There is therefore genuine cause for concern that the Protection of Information Bill has sinister motives beyond what Varney told us. 

And these motives have to be linked to the general successes of the coverage of corruption and political power struggle in South Africa. Whether true or not, the proposed law is to be seen in light of the post-Polokwane political order, especially calls to rein in the media seen as threatening the ruling elite. Both factions within the ANC have an axe to grind with the media, and on this question the ruling party is united, from Union Building to Luthuli house.

Policy cannot, therefore, be divorced from the political context in which it is proposed and practiced.  It is also important to point out that policy has to be supported by strong state institutions which South Africa currently does not have. The challenges the police face right from the top, the challenges of government delivery to the poor, unfinished local development budgets amidst poverty, HIV-AIDS, the 2010 world cup and an insatiable appetite for self-enrichment by the powerful makes calls for a relook at the proposed Protection of Information law louder and more credible. While Varney and the drafting team might have all the good intentions it is well in order to say South Africa is not ready for this kind of law. Instead let’s get back to the drawing board with the Access to Information. By Varney's own admission, “there are still numerous inconsistencies and shortcomings in the Bill”.

* Mukundu is programme specialist for media monitoring and research with Misa in Windhoek. This article was written for