South Africa moves ahead with bill to limit freedom of information

The current draft being voted on in parliament, clause by clause, would ban the acquisition and publication of documents classified as:

• "Confidential," where publishing the information would be “harmful” to national security or to South Africa’s relations with other countries;
• "Secret," where publishing the information may "endanger" national security or "jeopardise the international relations of the Republic"; and
• "Top secret," where publishing may cause “serious or irreparable harm” to national security or could cause other states to “sever diplomatic relations with the Republic.”

South Africa’s Constitution, written after the end of the racist apartheid government, is deemed one of the most liberal legal frameworks in the world, and guarantees free expression. It was, after all, the ANC that fought for such freedoms in its long period of struggle against the previous government. But efforts to change the laws to ban leaking of documents in the past year are part of the reason why Freedom House recently downgraded South Africa in its Freedom Index.

Curiously, some African countries – notably Kenya and Nigeria – have moved in the opposite direction of South Africa, enshrining the freedom of information. This week, Nigeria enacted a Freedom of Information law.

Yet some analysts argue that the Protection of Information Bill, while onerous, is not the first step toward dictatorship that it is often portrayed to be.

“The best thing that could be done to this bill is to throw it in the rubbish bin,” says Steven Friedman, director of the Democracy and Governance program at the University of Johannesburg. “But there is no way this legislation is going to shut down investigative journalism. We have heard about the horrendous clauses in this bill, and they are horrible, but we also have clauses that say you can’t classify information in order to cover up government incompetence, or to protect the government from embarrassment.”

Any government official who tried to prosecute a reporter for leaking documents showing corruption or incompetence would only end up seeing that evidence of corruption or incompetence introduced in a criminal trial, and then be reported in the media, says Mr. Friedman. The real victims of this law aren’t the media, he adds, but rather the much poorer civic activists in informal settlements who would be affected by this same restrictive law, but not be able to hire lawyers to fight for their right to information.

“This is about the fundamental right of the vast majority of South Africans to know what is being done to them, rather than the protection of the rights of a rather privileged group of people” in the news media, says Friedman.

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