After much critical comment from civil society on the Protection of Information Bill, last week the Chief State Law Adviser Enver Daniels chose to respond. This response does not look good for the future of freedom of expression and access to information in this country. Mr Daniels has chosen to simply dismiss the mass national and international protest submitted against the Bill. Apparently civil society is being "hysterical". I have to disagree. His attempts to diminish the impact of the mass of criticism are not going to be enough to silence the protests if all they essentially consist of is a position that can be summarised as: "I'm about 40% sure it should turn out alright".
The three chief areas of concern are simple enough: the wide powers for classification, and two of the penalty clauses against the release of classified information. Apparently, "...read in its entirety, the Bill would withstand scrutiny". This is in spite of the fact, putting aside these broader principled concerns of civil society, the drafters have failed to even consider the more pedantic contradictions within the Bill itself which reveal a strange level of scrutiny by the lawmakers. For instance, there are fundamental contradictions in application between section 19 and 24(2) which have not practicably been analysed.
According to Mr Daniels, "[w]e don't think the provisions are too wide". This in spite of the fact that any public official, if so delegated, can classify any document if it "may be harmful [or endanger or cause serious or irreparable harm] to the security or national interest of the Republic or could prejudice the Republic in its international relation" [Emphasis added]. The first concern here is the inclusion of "may". A decision-maker doesn't even need to be sure - if he has a suspicion, classification commences. And then it moves to those slippery terms of national interest and security - would bad publicity from another corruption scandal prejudice our international relations? And are delegated officials truly able to assess what my national interest would be, with no need to reference this against anything? Further, does national interest translate to government interest, or essentially ANC interest? These are not the kind of ‘finer details' which we should leave for time to solve: the fact that government is resistant to clearing up these definitions and applications before the Bill is passed should be making everyone uncomfortable.
Mr Daniels also said that lawmakers could not add in a caveat on allowing for the release of classified documents if it was in the public interest, which would be a caveat to protect journalists and activists from the draconian criminal penalties created. He noted that this was because he had no policy directive to do so. Perhaps he could have turned to Promotion of Access to Information Act 2 of 2000 (PAIA), a piece of constitutional legislation that should inform the construction of the Bill anyway, which also speaks of public interest waivers and could give the lawmakers some guidance in navigating these treacherous waters.
Mr Daniels did however note his own trepidation and was quoted as saying: "I hope people of integrity are going to perform these functions". However, hoping people will perform with integrity when there is no accountability mechanism put in place is a kind of hopefulness not appropriate for lawmakers who should be creating laws that, according to the rule of law, are certain and implementable. You cannot hope that checks and balances work, that do not in fact exist...even more disturbing is the fact that, once classified, public officials needn't even acknowledge the existence of the document. This allowance for bare denial makes the already somewhat toothless internal appeal mechanisms useless. The internal appeals mechanisms also provide for an inordinately delayed decision-making period and would add even more costs into the fray for activists.
There can be no way that the broad power given to officials with absolutely no effective accountability measures can ever be viewed as a constitutionally viable exercise of discretion. We as civil society do not need to have faith, and bare faith alone, in our decision-makers - this is why checks and balances, as well as guidance in decision-making, usually exist with the creation of new laws. Faith without evidence is religion rather than governance and is probably not a sound basis for informed public participation. And herein lies the rub - diminishing the information which the public sees about what its government is doing not only disempowers them, but makes the supposed representation of the publics' interest by their elected government farcical.
The solution is not as Mr Daniels proposes in the PAIA. An additional problem with the Bill is that - though not expressly conflicting - the conflicting priorities each law will have the effect of making PAIA a toothless tiger. My experience from working as an elected member on the National Coordinating Committee of the Deputy Information Officers Forum has taught me that the greatest inhibiter to Information Officers performing their function, which is to release as much information as possible, is their fear of reprisal by superiors. Let's turn now then to section 38 - the offences section that criminalises the disclosure of classified and related information. Although the section says "except where such disclosure is for a purpose and a manner authorised by law", which would include a release through PAIA, I am fairly sure that it won't take Information Officers very long to do their utilitarian calculation: comply with the PAIA Act which tells them to lean towards openness because it's the right thing to do, or take caution of the Bill which says proceed in secrecy or face imprisonment if you mess something up. They would have to be pretty masochistic to get this choice wrong, especially when there is no accountability once the document has been classified.
Another consideration to be had in analysing civil society's supposed hysteria is the concerted effort in the last few weeks of government to encroach on media freedom in all areas. The proposal of a Media Appeals Tribunal subject to parliament - which would obviously deprive the entity of the kind of independence needed to fairly monitor media - marks a trend of behaviour which everyone should be disturbed by.
Perhaps an analogy would assist Mr Daniels to understand civil society's position. Hysteria is when I am swimming in the ocean and then faint and drown because a piece of seaweed floats past. In contrast, it is not what is happening here: yelling to those around us to watch out when there is a great white shark swimming at speed towards us, jaws open but wearing a badge saying "Trust me". Until you tranquilise it or tie it down, I think the best move for civil society is to keep shouting. It is not just media and freedom of information law advocates who will have less to do on the weekends if this Bill is passed. The promotion of a government environment that can even better foster corruption affects us all. And we thought the Arms Scandal was bad - at least we knew about it.