South Africa Mulls ‘Protection of Information Bill’

27 July 2010

A government-proposed “Protection of Information Bill” that would prevent the disclosure of information deemed harmful to the “national interest” is being condemned by the media and civil society groups, according to newspaper accounts.

The bill will also limit disclosure of state-held commercial information about tender proceedings and the activities of state-owned enterprises. It would establish stiff penalties, including jail terms,  for the disclosure of state information, regardless of whether this is in the public interest.??

Parliamentary hearings have begun, with journalists and social activists saying the bill is unconstitutional, vague and overly broad. Restricting access to certain commercial information will inhibit the fight against corruption and impair markets, critics testified.

The bill is a revised version of a 2008 proposal that was rejected. One estimate of its chances now was given by Wendell Roelf in  Reuters. He wrote:

There is broad support in parliament for reforming existing laws. Analysts expect revisions to the current draft bill because its measures are so vague almost any government information could be deemed classified and kept from the public.

While the bill acknowledges the “harm of excessive secrecy” in its preamble, and states that its aim is to “promote the free flow of information within an open and democratic society,” it also sets a very low threshold for classification and imposes draconian penalties for those who reveal classified information, without providing for a public interest defense, according to a description by The International Press Institute.

The “national interest” is defined broadly to include “all matters relating to the advancement of the public good” as well as “all matters relating to the protection and preservation of all things owned or maintained for the public by the State.” It includes “the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound international relations.”

Critics also object that the bill’s procedures would place too much power in the hands of the intelligence minister.

Disclosure of classified information could be punished with penalties ranging from three to 25 years imprisonment. There is no option for a fine and the public interest is not explicitly mentioned as a defense. 

The bill also criminalizes the improper classification of information, where the intent is to “conceal breaches of the law,” “promote or further an unlawful act, inefficiency or administrative error; prevent embarrassment” or “give undue advantage to anyone within a competitive bidding process.”  The penalty would be a maximum of three years imprisonment, with the option of a fine. ??

The government could refuse to confirm or deny that information exists where the existence of such information is itself classified as top secret.

“I am concerned that if turned into law, this bill will permit the concealment of a vast range of information that is in the public interest, while at the same time leading to the erosion of investigative journalism,” said IPI Director David Dadge.

At a parliamentary hearing, Raymond Louw, chairman of the South African National Editors’ Forum, said the bill would give the state vast powers to shroud information in secrecy, and had been stripped of safeguards contained in earlier versions.”This has tightened the state’s grip on maintaining secrecy of information,” he said. “It also has extended the powers of politicians over the classifying of information.”

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