By Nompumelelo Motlafi
Arguments about the Protection of State Information Bill have rarely occurred at low decibels. Black-clad journalists and other critics shout that the Bill is unconstitutional, tantamount to gagging, and heralds the end of democracy. At best, government representatives respond that there is no cause for alarm: the Bill is based on careful comparative research and is of limited reach, primarily concerning the state’s national security organs. At worst, some government representatives have dismissed critics as suburban elitists who just want the maintenance of PW Botha’s Protection of Information Act (1982). In the middle of it all are poor saps like me who just want to know what the hullabaloo is really about. I cross my fingers when I cast my ballot and trust the government I’ve helped win will make the right decisions most of the time; because, quite frankly the idea of scrutinising every policy and proposed law is as enticing as a hundred laps across an Olympic-size pool of bitter molasses.
Nevertheless, it has been difficult not to take sides in the debate even without having a full grasp of the facts and legal implications. On Facebook, emotions on the issue have heated up faster than a Kenneth Kunene sushi party. The stimulus that compelled me to jump into the murky foray was the bandying about of phrases containing the terms “national security” and “national interest”. Both terms have been known to ignite something akin to sexual arousal in international relations scholars. How has this Bill defined the terms? Are the perimeters of both terms clearly outlined? What is the scope of national security concerns? Taking up a challenge proposed by one of my Facebook friends, I decided to read the Bill myself.
For the most part the Bill is a snooze fest that heats up right at the end, where it details proposed penalties for the possession and leaking of classified information. The definition of national security is rather heart-warming, with its claim of an endeavour to protect “the people and occupants of the Republic” from invaders, terrorists and the like. A little later in the document, the Bill expresses a little more strongly that national security also entails the preservation of the state itself, particularly the government of the day. The definition of national security does not directly confront the possible scenario of government becoming violently pitted against a considerable segment of its population, although reference to “terrorists” may be a starting point to this issue.
The issue of classification of state information is hardly new and is not necessarily controversial. Governments don’t tell their citizens everything, sometimes with good reason. Concerns about the legality of journalists’ information-gathering methods and journalistic irresponsibility in disclosing classified information are also not new. However, the watchdog role of the journalist has always counterbalanced these negative concerns in instances where covert government actions are really or potentially detrimental to citizens. The proposed “Secrecy Bill” criminalises possession of classified information regardless of how this information was obtained and wittingly or unwittingly blurs the line between journalists and whistle-blowers on the one hand and treasonists on the other hand — something that few South Africans have had to contemplate since the end of apartheid. The absence of an explicit “public interest” defence in the Bill remains a sore point, even though government representatives have stated that this defence is already established under common law. It may be of little comfort to South Africans that the governments and peoples of “established democracies” such as the US (under the Bush jnr administration) and the UK have been having similar debates about the possible prosecution of journalists who disclose protected information, even though both countries have long-standing traditions of protecting them.
Just as important as the actual content of the Bill itself is the context in which the Bill has been drafted. Why is passing a law punishing journalists and others for possessing classified information suddenly a matter of urgency under the Zuma administration, when it did not seem to be a matter of urgency under the Mandela and Mbeki administrations? Or was it? Why has the ANC-led government waited for so long to attempt to repeal the Information Act of 1982? If somebody could give a detailed answer to these questions, perhaps we might be able to get a better picture of who or what this Bill is really trying to protect.
Nompumelelo Motlafi is a former international relations student and bum poet. She fights daily against the relentless onslaught of her own apathy.
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