By Tammy O’Connor
The passing of the Protection of State Information Bill by the National Assembly on November 22 marks a significant erosion of the right to know in the country.
The passage of the Bill comes just as Africa is celebrating a surge in the acknowledgement of the right of access to information on the continent. Africa has previously lagged behind its global counterparts in recognising the fundamental right to access information. But since 2005 access to information laws have been passed by seven African countries, more than tripling the laws in place across the continent. In the last two years alone, Liberia, Guinea, Niger, Nigeria and Tunisia have all introduced access to information laws. In 2011, Uganda also passed regulations to support the implementation of its access to information law, passed in 2005.
And this shift towards more open information regimes shows no sign of slowing. Both Rwanda and Sierra Leone aim to pass access to information laws by the end of 2011, while Zambia is set to do so by mid-2012. Kenya and Morocco have recently passed new constitutional provisions enshrining the right to information, with Kenya currently considering an access to information bill to realise the constitutional right. Across in West Africa, the Senegalese parliament has indicated its support for the adoption of an access to information law.
It is against this flurry of activity enshrining the right on the continent that the regressive decision of the National Assembly to pass the Protection of State Information Bill is all the more shocking.
Dubbed the Secrecy Bill by its opponents, this Bill will have a chilling effect on access to information in South Africa. The ANC claims to have “aligned” the Secrecy Bill with South Africa’s access to information law, the Promotion of Access to Information Act (PAIA). But the “alignment” to which the party refers was the insertion of a provision basically empowering the Secrecy Bill to override the PAIA.
As a result of this “override” provision, restrictions on the release of information under the Secrecy Bill will apply even where information should be released in terms of the PAIA. Thus, those provisions in the Secrecy Bill that prevent the release of classified information effectively insert a new ground for refusal into PAIA, allowing access to records to be refused simply on the basis of their status as a classified document, and in doing so, fundamentally restricting the constitutional right of access to information in South Africa.
The Bill also indefinitely extends the timeline for government to respond to requests for access to classified records. PAIA requires requests for access to information from the state to be responded to within 30 days. In contrast, the Secrecy Bill merely requires that requests for access to classified records are responded to within a “reasonable” time, leaving the period open to subjective interpretation by government officials. Given the urgency often associated with requests for information, the indefinite extension of the time period represents a further attrition of the right to information in South Africa.
The Bill also imposes harsh prison sentences on whistleblowers and others that disclose classified information, even where they do so in the public interest. In fact, the Bill allows for the imprisonment, for up to five years, of people that receive classified information and do not return that information to the police or state security services, even where they do not disclose the information to anyone.
The passing of the Secrecy Bill seems a clear indication that South Africa, once heralded as sporting the gold standard in access to information laws not only on the continent but around the world, is now infringing the rights of its people, as the government closes its doors on scrutiny and accountability. One can only hope that its African neighbours will not see the South African government’s flagrant disregard of the rights of its citizens as an opportunity to do the same. Rather, this must present an opportunity for other African nations to hold South Africa to the democratic principles it claims to champion.
Tammy O’Connor is the advocacy and training outreach officer for the Freedom of Information Programme, South African History Archive.