CIVICUS interview with Dale McKinley

Dale McKinley, official spokesperson of South Africa’s Right to Know Campaign (R2K) and member of its national working group spoke to CIVICUS about the Protection of Information Bill passed by the National Assembly and awaiting approval of the National Council of Provinces. Dale is a long time social and political activist as well as an independent writer.

We understand that the Protection of Information Bill was revised a few times before the National Assembly passed it in November last year. What are the main concerns with the current draft of the bill?

Overall, despite the amendments, the fundamental thrust of the bill has not changed. It gives tremendous powers to the Minister of State Security to withhold a great deal of information from the public. The Right to Know campaign had devised a seven point freedom test for the bill. The bill passed by the National Assembly fails this test on the following grounds. First, the current version gives the Minister of State Security the liberty to bring any “organ of the state” apart from the security services within the ambit of the law if that organ applies to the Minister directly and shows “good cause”. Basically, this amounts to discretion to shield from public scrutiny, activities and information related to any government department or body.

Second, the bill does not adequately protect whistleblowers by containing a public interest override. This means that a person who leaks classified information cannot claim protection from criminal punishment on the grounds that he/she did it in the public interest.

Third, there is no independent review body to hear and swiftly decide complaints regarding denial of information under the provisions of the bill. The Classification Review Panel envisaged by the bill oversees the overall classification process but cannot provide relief to aggrieved members of the public. For that they have to approach the minister. If the request is not successful, they can go to the court but legal processes as we all know are time consuming.

Fourth, the law contains heavy criminal penalties for various offences related to possession and communication of classified information which seeks to create undue fear in the minds of civil society activists and journalists who may wish to expose official wrongdoing. Draconian punishments of up to 25 years imprisonment mandated by the law will have a chilling effect on the freedom of information in the country.

Finally, information about commercial and scientific ventures of the state should be freely available to the people. Nonetheless, the bill seeks to protect exposure of economic, scientific or technological secrets.

What is the present status of the bill? What other processes does the bill have to go through before finally becoming law?

Currently, the bill has been passed by the National Assembly. It is now before the National Council of Provinces, which is holding public hearings across the country on it. After the public hearings, the National Council of Provinces will likely discuss the bill for 2-3 days.

If the National Council of Provinces makes any amendments to the bill, it will be sent back to the National Assembly for approval. However, if the National Council of Provinces passes the bill in its current form, it will be sent to the President for signature. The President can choose to seek a constitutional review of the bill before signing it into law.

What strategies are civil society groups adopting to prevent passage of the bill?

The present strategy is to fully participate in the hearings and make submissions so that our voices are heard throughout the parliamentary process. If the bill is passed despite our reservations then the R2K campaign will challenge it in the Constitutional Court and seek  amendments on grounds of constitutional incompatibility. If we are unable to prevent passage of the law, we will continue to oppose it at the community and grassroots level and build pressure for its repeal. We plan to integrate access to information in people’s struggles and protect the hard won democratic space we have in our country. We will encourage whistle-blowing activities to expose misuse of the law.

What will the impact be if the bill becomes law?

Overall, it will be disastrous to democratic life in South Africa. As I mentioned before, it will have a chilling effect on access to information and lead to self censorship and a climate of fear. Such a huge concentration of power in the security apparatus in violation of constitutional principles will be a huge setback to democracy. It will be a negation of the values which were at the core of the liberation struggle. Politically, it would be a huge step back and also send wrong signals to other countries on the continent. We have been in touch with civil society groups elsewhere who tell us that their governments are keenly watching the progress of this bill. If it succeeds in South Africa, we will see similar versions appearing in other countries in the region. It will give a green light to governments to undertake repressive measures much in the same way the enactment of the Patriot Act did after 9/11 in the U.S.

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