Why South Africa must not enact the Secrecy Bill

By Mandeep Tiwana, Policy Manager, CIVICUS

South African lawmakers are currently meeting in committee to discuss, clause by clause, various aspects of the Protection of Information Bill being championed by the government. Dubbed the ‘secrecy bill,’ this proposed piece of legislation is making journalists and civil society activists increasingly nervous that their professional quest for the truth will become a highly risky endeavour if the bill is passed into law.

At the heart of the debate is South Africa’s constitutional commitment to ‘accountability, responsiveness and openness.’ The bill contains draconian punishments ranging up to 25 years imprisonment for a host of offences, including obtaining, possessing, intercepting and disclosing classified information. It empowers the State Security Minister to categorise as classified a vast array of information - not only about government departments but also about independent commissions, municipal and local councils as well as community development forums.

Furthermore, information is also prevented from reaching the pubic sphere through empowering departmental heads to devise internal policies, directives and categories to classify and declassify information. Notably, disclosure of information is barred in the interests of “national security,” defined through a long-winded omnibus provision, a potentially formidable barrier against the release of information exposing official corruption and mismanagement.

Given its various aspects, there is a real danger that the passage of the secrecy bill will lead to increased opaqueness in government functioning, particularly with regard to service delivery bottlenecks. This will hit impoverished South Africans the hardest who are still struggling to realise their constitutional entitlements fifteen years into the country’s experiment with democracy. There is also the question about the bill negating the values for which the struggle against apartheid was waged and upon which the edifice of the present day South African state rests.

Despite the dire predictions of the naysayers and sceptics, South African democracy has been rather resilient. But whether it can survive such a serious onslaught on the basic freedoms of expression and information, and what the likely ramifications will be within and beyond South Africa, is anybody’s guess. As a people, South Africans have a strong culture of public protest and civil disobedience. If the bill is enacted, resentment is likely to bring large numbers of people onto the streets. Service delivery protests are a routine feature of South African life. Depriving them of the right to information is not likely to bode well amongst millions of South Africans whose quest for social and economic justice will be considerably weakened.

Then there is the issue of the cascading effect the proposed law will have in the region. A number of African governments from Addis Ababa to Lusaka and from Freetown to Harare have introduced copycat laws and policies to limit civil society’s ability to expose mis-governance and human rights violations. In a generally disenabling environment for civil society in the region, South Africa is widely regarded as an African leader and shining example of a country that respects the freedoms of expression, association and assembly. All this will change if the secrecy bill is adopted. South Africa’s slippage from its pedestal as country that respects the democratic rights of its citizens and civil society will be watched closely by authoritarian and unscrupulous governments and used as an argument to justify their actions. Moreover, it will rob South Africa’s political leaders of the moral authority they bear when going out to resolve violent conflicts on the continent as part of their national diplomatic tradition.  

Lastly, the international community sees South Africa not just as a continental  leader but as a key member of a club of emerging democracies, exercising wide influence in global affairs on the twin bases of their rising economic power and strong commitment to democracy. South Africa’s case for a permanent seat on the UN Security Council along with India and Brazil rests largely on the legitimacy derived from these credentials. It would be a shame if South Africa were to abdicate the respect accorded to it amongst the community of nations.

Tinkering with fundamental freedoms is negotiating a slippery slope. Nelson Mandela’s words at his Nobel lecture in 1993 are starkly relevant in this case: ” A new society cannot be created by reproducing the repugnant past, however refined or enticingly repackaged.” Most of the South Africa’s politicians who have spent a lifetime opposing an unjust and brutal apartheid state - which had no qualms in using the law as an instrument of oppression - should know better.