South Africa’s Protection of State Information Bill (POIB) was  pushed through Parliament’s National Council of Provinces (NCOP) by the ANC’s majority muscle late on Thursday 29 November 2012. The vote was 34 in favour of the draft legislation, while 16 members of Parliament voted against the Bill.

As MPs filed into Parliament’s upper house, the Right2Know campaign, a coalition formed in August 2010 to oppose the Secrecy Bill, handed out letters spelling out its concerns. “One of our campaign supporters noticed that the MPs were carrying documents themselves, and did an exchange,” says Murray Hunter, Right2Know’s spokesperson and organiser. “What we got hold of was a spin sheet with sound bites spinning certain aspects of the Bill. It was a document called “Myths about the Protection of State Information Bill” asserting that the Bill did indeed contain a public interest defence and would make it impossible to hide corruption.”

Murray says that the information used in the document – which had no source or logo on it – was filled with flawed and confused arguments. The Right2Know campaign said it wanted to know who had drafted the document and how it was funded. 

Parliamentary leader for the DA, Lindiwe Mazibuko, said her biggest issue was the source of the anonymous document, and possible interference by the ministry of State Security. “We know that Siyabonga Cwele’s department has been interfering in the legislative process quite publicly by saying what NCOP members should and shouldn’t do with the legislation, which is in itself a violation of the separation of powers. That is problematic because once the law is in Parliament, it must be dealt with by MPs, and an MP’s job is not to do the bidding of government,” said Mazibuko. She added that if the document did indeed come from the ministry of State Security, it would be a “huge problem”.

“It is well known that Parliament has a research unit in every single portfolio committee, and every select committee, which has a secretariat and a researcher, and often they provide committee members with information. But there is something very suspicious about parties and MPs being given a script on their way into a debate, whether or not that script came from Parliament or a government department. It is suspicious when this document comes late in the game, when the legislation is being debated upon,” she said, and added: “At the moment we are concerned with some of the procedural problems with the Information Bill, and it is certainly one of the things we will look into.”

Earlier in the week, the controversial Bill – subject of much civil society protest – was adopted by an NCOP ad hoc Parliamentary committee which had been working on changes to the Bill for the last year. Mail & Guardian reported that opposition parties were given just 10 minutes to study the 22-page report on the ad hoc committee’s deliberations, and amendments to the Secrecy Bill. The opposition walked out and ANC members voted to send the Bill to a plenary session of the NCOP.

“It is clear that the Bll’s final process through the NCOP has been rushed and botched very badly,” said Nic Dawes, editor-in-chief of the Mail & Guardian. “Despite the initial willingness of members of all parties in the NCOP to do this properly and to try and hear the concerns that were raised by civil society, by lawyers, by the media, by activists, this potential to do a good job has been replaced by a mad rush to meet a self-imposed deadline. Serious damage has been done to the process as a result.”

Dawes said people weren’t able to properly consider the committee report earlier in the week and added it was likely that the remainder of the NCOP, and plenary session, hadn’t had a proper chance to consider the amended legislation in its entirety, nor to make an informed decision on it.

“The remaining options are for the National Assembly to do what it ought to have done all along, and that is to say that this legislation needs major revisions. It needs a proper public interest defence and a public domain defence. It needs to have an appropriate balance between freedom of information and the need to protect very narrowly and carefully defined state secrets, and it needs to be subordinate to the main piece of Constitutional legislation in this area, and that is the Promotion of Information Act,” Dawes said, adding that the National Assembly had one last chance to do the right thing.

“If they don’t, I hope a draft of MPs will send this for Constitutional review; I have been advised that they will try. Or alternatively that President Zuma does that, and then ultimately we will end up in the Constitutional Court, testing the legislation vigorously, and it is a pity that it looks like we are going to get to that place, but if need be that is what we will do,” Dawes said.

As the NCOP session got underway, State Security minister Cwele worked hard to sell the “benefits” of the Bill. Cwele, who had long pushed for the more draconian aspects of the Bill to remain intact, said the draft legislation sought to “advance the public interest by protecting certain classified information held by the state that if it became known to adversaries, would prejudice state programmes and hinder its ability to perform its duties.”

Reaching for a snappy quotable quote, Cwele addressed those scared of the implementation of the Bill into law. “To those who fear that the Bill may be abused, we say: the only thing to fear is fear itself.” (We presume Mr Cwele is FDR’s fan – Ed)

BDLive reported that there was fierce opposition debate in the NCOP, with DA MP Alf Lees accusing the ANC of misleading the public by claiming extensive amendments to the Bill had ruled out the possibility of a state official using it to conceal wrongdoing. “Given the levels of corruption we see in government today, it is inevitable that the Bill will be used to cover up crime and corruption by those who risk exposure,” he said, to ANC jeers.

Lees said the Bill still lacked a proper public interest defence clause to protect the media and whistle blowers, while his colleague Albert Fritz added, “This Bill is Stasi-like in its content and design.”

Anton Harber, who directs the Journalism and Media Studies Programme at Wits University, agrees that there is still much to fear about the Bill. “It affects people in two ways. If one comes across information that needs to be out there in the public interest, clearly it raises the risks of being a whistle blower enormously,” said Harber.

“I have no doubt it will have a chilling effect on certain kinds of investigative journalism. It means an impact on the flow of information in the public arena. The penalties for whistle blowing potentially jump enormously here,” he added.

To understand the practical impact of the Bill, should it become law, Daily Maverick spoke to an activist in Kwazulu-Natal, a province where the political body count has been rising during recent months. 

“We have a lot of political killings in the province at the moment, and in some cases even within the same political party,” said Desmond D’sa, a veteran political activist who’s currently in an organisational role for Right2Know in Kwazulu-Natal. “We believe that this is because of all the corruption that’s happening in this province. We have been asking for information related to this for a long, long time; for instance, we’ve asked for the Manase report in Durban, which reveals a lot of the shenanigans that going on.”

But the city refused to let activists, who report and organise against corruption, to have a copy of the report. “The city cites that whistle-blowers will lose their jobs or get killed and all of that, but that’s exactly what’s going on here in the ruling party. We believe that the Manase report is linked to these killings and will reveal a lot about what’s going on in the ANC in Kwazulu-Natal. The killings are about who is in power, who controls the resources, and who gets access to resources,” he said.

D’sa said even less “sensitive” information, like finding out about funding of housing projects, is blocked by officials who are already using the Bill (which hasn’t been passed in to law) to stop activists, the media or concerned citizens from getting information. 

“If, for instance, you want to know what housing projects are being done and what funds have been made available for this in the city, you won’t get to the bottom of it. This is because the information is classified and not released. It is classified by people right at the top. It is going to make it impossible for people to find out what is really going on here in the province,” said D’sa.

The activist explained that the control of information made it impossible for civic society to do its job as a watchdog of government, and stated that the Bill was particularly threatening for whistle blowers. 

“The NGOs and the civic organisations depend on whistle blowers to uncover corruption, and whistle blowers are crucial to the functioning of a democratic society and to help us get to the truth. However, the situation with whistle-blowers will get even worse because of the mounting fear. People will be fearful of being arrested, and now will be scared to release any kind of information because of the consequences,” D’sa said.

In terms of the proposed law, whistle blowers who reveal “corruption, malfeasance or wrongdoing by the State” can look at jail terms of up to 15 years. Furthermore, the Right2Know campaign also fears that whistle blowers may be charged under espionage clauses of the law which would see penalties of up to 25 years imposed.

In Kwazulu-Natal, this might be the case for activists investigating chemical fires and explosions. “In Durban the chemical cluster operates under the military, and under this new law, the military and the ‘securocrats’ in government won’t release any information at all. Even when people are getting killed or people are being affected by chemical emissions, this will not be released because they will deem it confidential and they will classify it,” D’sa told Daily Maverick.

“We have had over thirty explosions in the past few years, and fires in Durban, and we asked the department of labour to release certain forensic reports and they won’t do it. Can you imagine now if the law comes out? The flow of information with come to a standstill,” he added.

In the past, activists have been able to eke out some information through whistle blowers, but this will either dry up, or both activists and whistle blowers could face jail stiff terms. But D’sa and the Right2Know campaign are unrelenting.

“I hope that everyone realises that the democracy that everyone fought for and yearned for will be curtailed by this new law, as it is being bulldozed through Parliament. We are worried that we have gone right back, right back to the dark days of the Apartheid government, in bringing about these laws to stifle civil society, and to stifle ordinary people from standing up and asking the right questions, and getting the answers.”

“We will up the tempo of our protests. We are going to fight, even to the extent of being imprisoned. We are not going to shy away from standing up for the truth – even to the extent of being imprisoned because we need to fight this,” he added. DM

Read more:

• National Council of Provinces adopts Secrecy Bill draft on BDLive 
• ConCourt action will be Secrecy Bill activists’ last resort in Mail & Guardian 
• Blow for Cwele as contentious ‘Secrecy Bill’ clause removed again in Business Day 

Photo by Kate Stegeman.