“The Protection of Information Bill is the biggest legislative threat yet to freedom of information in general and to the work of journalists in particular,” says Dawes. “It criminalises some of the most basic and necessary things we do. What the bill envisages in many ways is that we would be allowed to publish press releases (issued) by the state. It would certainly make it very dangerous for us to pursue the big stories that we publish in the public interest around corruption, mismanagement and conflicts of interest.”

The South African media were alarmed by the first incarnation of The Protection of Information Bill which was introduced back in 2008 by the Mbeki regime. The new version of the bill, currently before Parliament, is infinitely worse in that it strengthens some of the more damaging provisions which are a threat to freedom of information and the effective functioning of a press that protects public interest in an open democracy.

Why has the bill been reintroduced? This needs to be seen in the context of a slew of government initiatives to curb critical reporting that includes the resurrection of a regulatory media tribunal, and amendments to the Criminal Procedure Act that would compel journalists to reveal confidential sources. “One has to see the Information Bill in the context of intense anxiety and anger within the governing party about the role the media plays in our society, and the discomfort with the principle of an open democracy clearly outlined in section 32 of the South African Constitution,” says Dawes.

Once public hearings have been finalised, changes to the Information Bill could be drafted and these amendments will be considered by the national assembly before the bill makes its way through to the national council of provinces, before ultimately being passed into law by President Jacob Zuma. Dawes believes though that, if the bill does go through in its current form, it will be vulnerable to Constitutional challenge.

Recent public statements by government and ANC party officials show that the media is viewed as a hostile enemy by the ruling party. What is being ignored is the central role the media plays in a democracy. “There are other statements that make it equally clear that the media is a helpful part of the accountability architecture and useful to state and security institutions,” says Dawes.

“The South African Revenue Service frequently scans the media for people who may be evading taxes, and there are reports based on interviews with intelligence services that say (they) use substantial media stories as a basis to begin investigating possible crimes. I think there is a fundamental misunderstanding that openness and security are antagonistic to each other. In fact, openness and security are mutually supportive. That mutual support would be seriously compromised if the bill had to go through, in fact it may break down almost entirely.”

Dawes details a number of serious problems with the Protection of Information Bill in its current incarnation. “For starters the basis on which documents can be classified is extremely broad, and includes in its ambit just about everything the government does. The bill also specifically includes commercial information, something that hitherto had never been covered by this kind of classification, and which would make it very hard to report on possible tender irregularities, financial misconduct and even possibly the financial performance of some of the state-related institutions,” said Dawes.

The bill criminalises the entire chain of custody of any leak of material that is classified in terms of its provisions, so it is not just the whistleblower who could be prosecuted, but journalists or society activists who receive documents and who don’t immediately take these to their nearest police station. Punishments are severe and can include jail sentences of up to 25 years, in terms of the proposed bill. “That is criminalising journalism. There is no public interest exception or defence if you do that. It would be a big step in the right direction if the bill included a defence that you had obtained the material in the public interest. In other words, if you were attempting to expose mismanagement, gross incompetence, corruption, fraud, or hypocrisy, you wouldn’t be guilty of an offence.”

Other problems with the bill include that it makes no provision for an independent body to monitor whether classification is appropriate or not, and the fact that there is no recourse other than through a minister delegated by the presidency. “There is no accountability and there is also no paper trail so you don’t have to give a written rational for the decision to classify something. An entire category of information can be classified, so you can say that everything that happens in a meeting of the board sub-committee under remuneration is classified.  It is enormously dangerous legislation.”

Dawes says the proposed legislation needs major revisions to make it palatable to a free and independent media. “A few ameliorative paragraphs isn’t going to do it, it needs a complete overhaul if it is to be remotely in tune with constitutional and democratic principles.”

By Mandy de Waal

Read more: Mail & Guardian, TimesLive, Business Day.

View The Protection of Information Bill.

Watch Webber Wentzel associate Okyerebea Ampofo-Anti speaking about the Protection of Information Bill on Creamer Media: