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Everyone stands to lose if the secrecy bill succeeds

The Protection of Information Bill (POI) saga is probably more of a farce than a black comedy, but doesn’t it make that late nineties movie Wag the Dog spring to mind? Perhaps not because of similarities between its plot and the POI saga, but definitely as one considers the lame attempts of those championing the bill to give execution to the idiom that titles this movie.

See, to “wag the dog” means to intentionally deflect interest away from an important matter by masking it with something less significant. The POI gazetted by State Security Minister Siyabonga Cwele earlier this year was only a slightly redrafted version of a similarly named 2008 bill. Like his predecessor, Ronnie Kasrils, minister Cwele has at various occasions invoked apartheid secrecy (the act currently in place dates from 1982), administrative stability and cost concerns as key reasons why the POI must be given easy passage. Of late, hijacking companies in cyberspace has become another defence. By all accounts, their attempts to play down the glaring extravagances of this bill have not been a success.

These excesses were first gestured by a ministerial review committee on intelligence (staffed by Joe Matthews, Frene Ginwala and Laurie Nathan) before the 2008-POI got shafted. With the POI’s 2010 reintroduction, the 2008 ministerial review committee’s concerns were bolstered not only by opposition parties, but also by the South African Human Rights Commission, the South African History Archive and the Nelson Mandela Foundation, the Institute for Security Studies, Eskom, Cosatu and the Freedom of Expression Institute.

The vagueness and broad-ranging nature of definitions in the bill, such as “national interest” (this has been nominally dropped in the latest redraft) and “national security” under which the handling of classified information shall be deemed an offence has undoubtedly received the most coverage. The prescribed levels of punishment for offenders and the negative consequences that it may have for various areas of activity — like parliamentary and civil oversight, academic study, journalism and investigative journalism in particular — have also received much airplay. There are, however, a number of other points to ponder.

With his submission of the latest redraft last week, minister Cwele’s appeals for patience, so procedures can take their course, were viewed with suspicion. One cannot help to understand why. Nominally, because of the asserted lack of congruence with other legislation or emerging legislation ranging from the Constitution, to the protection of access to information, the protection of private information, protected disclosure and legislation governing companies. The state security department’s lack of response to criticisms presented in submissions during the 2008 process, which were left to be regurgitated in 2010 to yet unknown avail, raises further questions. So does the cosmetic retouch represented by last week’s second redraft, which spites all the hefty protests.

There is broad consensus by a diverse range of critics on key additional points of the POI:

• Its potential to encourage secrecy and inhibit the free flow of information;

• Its potential to afford civil servants and elected officials the opportunity to withhold from the public information relating to possible corruption and other forms of malpractice in government and elsewhere;

• The extensive powers that it affords the state security minister in making final determinations related to the classification or declassification of information; and

• The far-reaching level to which the authority to classify information may be devolved, including low-level state-controlled organisations and the classification of information related to private-sector organisations implicated in the National Key Points Act of 1980.

As the struggle against white dominance gathered pace and South Africa became recognised for its abhorrent internal policies in the late seventies, even the impetuous Groot Krokodil (then prime minister PW Botha) came to see the folly of a similar, but less far-reaching legislative attempt. He had little choice too, because South Africa’s largest trade partners warned that economic sanctions would sharpen, international capital would flee, giving momentum to the ANC.

Today our trading partners are more diverse and our international legitimacy well consolidated. The ruling party also still has a large democratic majority, which blunts the sting of its frustrated attempts to get passage for the POI. But even as our economy has become more sophisticated, our competitiveness and ability to create jobs still depend heavily on the integrity of our institutions. International indexes already question this with regard to the diversion of public funds, low levels of trust in our public representatives, favouritism, the burden of government regulation and the reliability of our criminal justice system.

If the POI succeeds, these grey areas may darken considerably. If they do, international capital will avoid us, and some chunks already present may even flee. Everybody stands to lose, but at our state of development, the prospects of the unskilled poor will be dented most.