Crucial to wellbeing of SA’s democracy

The following article was published online by Business Day. Ebrahim Harvey argues why, despite recent concessions made by the ANC, the secrecy bill remains a threat to South African civil society.

The ruling African National Congress (ANC) dislikes being compared with apartheid rule under the hated former Nationalist Party, and often for very good reasons. But the current, controversial and contentious Protection of Information Bill, which many have dubbed the Secrecy Bill, is without doubt reminiscent of the dark days of apartheid when, under the guise of “state security”, countless Draconian laws were passed to control, regiment, muzzle and suffocate the black population and particularly black opposition.

Welcome as the recent concessions by the ANC are, they do not confront the thorniest problems civil society has with the bill.

It is a fact that political authorities can sometimes manipulate information to hide from citizens the facts about their lack of success. “Where secrecy and mystery begins, vice and roguery is not far off”.

The 2002 Promotion of Access to Information Act was to a large extent exactly that: it promoted access to information and — despite several weaknesses, ambiguities and loopholes — it was a great step forward in our constitutional democracy. The 2011 Protection of Information Bill, it appears, is hellbent on reversing such progress.

Our rulers have had a tendency to latch on to particular nationalistic but essentially nebulous catch phrases in the hope that they will rally public support and consent. In the late 1990s, opponents of the regime were accused of a lack of patriotism even when often — not always — it was indeed the last refuge of scoundrels. Calls to patriotism were often a subterfuge of ruling parties to obscure burning social issues they failed to deal with. Later, our “national interest” — the flip side of patriotism — was used to cajole a reluctant citizenry into acquiescence.

Today, the buzz word, especially in relation to the Protection of Information Bill, is “state security”. But the ruling party has patently not done enough research on this controversial and contentious topic — and certainly not on whether the bill will measure up to constitutional scrutiny in this and other respects. There are several compelling reasons why we require an urgent review of this bill, which go way beyond the concessions made, and which confront the real meaning of a constitutional democracy.

1.) The ANC has not adequately defined what “national security” is in relation to the democratic right to know, and therefore to access information about what is going on in the corridors of state power. The state does not possess some innate powers that compel public adherence and consent simply because it is the executive seat of governance.

2.) Inextricably tied to the lack of coherent definition above, is: who has the constitutional right to decide what are legitimate “state security” considerations? Surely we cannot accept that this crucial definition is the prerogative of the ANC or the Cabinet. Instead, nowhere more must civil society intervene than in the process of defining and deciding what are legitimate, reasonable and worthy state security considerations and sanction, and which are decidedly not and therefore serving the desire for secrecy and lack of accountability.

The reason why the organs of civil society must intervene — as they have been admirably doing in Cape Town — is simply because it is they who will bear the Draconian brunt of the bill if it is passed. And it is precisely for this reason that the ally of the ANC, the Congress of South African Trade Unions (Cosatu), has joined the rest of civil society in condemning the bill.

The extensive definition of “state security” by the drafters of the bill is meant to convey how seriously the ANC regards information they believe the public has no right to know about. Even if the bill is passed with the concessions made, the arbitrary powers to decide what information is classified will — once rooted — become the biggest obstacle to the democratic accountability of the government to the citizens who elected it to power. Any information the state decides must not become public knowledge — or be removed from the ambit of public scrutiny because it is too sensitive or potentially compromises “state security” — will be classified.

It is the democratic and constitutional integrity of this process that we should emphasise, rather than the suggestion that such a serious shortcoming can be addressed by the right of appeal following classification, important as that is too.

3.) Integrally linked to point two above, is: who decides on the criteria for classifying information? This is the most important matter and the one that most urgently requires the influence of civil society. Think of it this way: what will “state security” mean for the vast majority of citizens currently languishing in growing unemployment, poverty and related social miseries and insecurities? For them the biggest threats to their security are the social consequences of these crises. Besides, in such a context, “state security” can become an albatross around the necks of ordinary citizens who also want the democratic and “developmental” state to account for the problems or failures they experience and perceive.

What is more important? An opaque and highly questionable “state security” or the wellbeing of SA’s citizenry, especially when their health or otherwise is dependent on how much they know about what is going in their government. Precisely because information is power, the outcome of the present conflict between the state and civil society around this bill is crucially important for the future of our already fragile democracy. The more information that is classified — and the arbitrary process by which that is determined — the greater will be the threat to a nation already imperilled by the unprecedented magnitude of the current social crisis.

The less information is available the more we are, in fact, disempowered.

Perhaps, ending this piece with a quote about what the ANC itself had to say as it prepared for power in 1992 is most telling about some of the changes it has undergone: “SA has been a closed society, with many restrictions on the flow of information. Legislation, the structure of ownership of media resources, skills, language policy and social deprivation have undermined access to information for the majority of the population. The ANC believes that the transition to democracy in SA entails a movement from a closed society into one based on a free flow of information and a culture of open debate. An ignorant society cannot be democratic.”

• Harvey is the authorised biographer of Deputy President Kgalema Motlanthe.

Source: Business Day