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Time to rethink the ‘Secrecy Bill’ by Ihron Rensburg

The Sunday Times recently carried extracts from an article by the Vice-Chancellor on the Protection of Information Bill in which he called for government to revisit the proposed legislation with the help of the academy. Here is the full article

No draft legislation has caused more concern or generated more critical comment than the proposed Protection of Information Bill – the so-called ‘Secrecy Bill’ – which is currently working its way through our national legislature.Numerous voices have been raised against the Bill. They are wide and varied, but all carry weight and require careful consideration. The moral lodestar of South Africa’s young democracy, Bishop Desmond Tutu has cautioned against the Bill in its current form. So has Ronnie Kasrils, a former head of the national intelligence service, the very state organ responsible for safeguarding state secrets.

Constitutional law experts have argued that the Bill is unconstitutional and Cosatu, a key alliance partner of the ruling party, has indicated that it would launch a court challenge if the legislation goes through in its current form, claiming: “the Bill is a significant setback for the protection of openness, transparency and accountability guaranteed by our Constitution”.

The Human Rights Commission shares many of the concerns voiced by civil society and the media. As Pregs Govender, deputy chair of the Human Rights Commission put it in a recent article in the Mail & Guardian: “The commission is deeply concerned about the Bill’s impact on the rights of whistle-blowers and journalists who release information in the public interest. The Bill would allow any state agency, government department, parastatal or local municipality to classify public information as secret. More than 1 000 institutions would be granted such power. The definition of ‘national security’ remains vague and open to abuse. Ordinary information relating to service delivery can become secret and bureaucrats need not provide reasons. This may be used to cover up corruption”.

Where does the academy stand in this debate? One recent response to that question comes from Professor Jane Duncan, Highway Africa Chair of Media and Information Society at the School of Journalism and Media Studies at Rhodes University.

She has warned that the Bill will make the government the arbiter of what can and cannot be researched and warns that this would be unconstitutional. “The government cannot be allowed to enjoy the power to block research that may reveal inconvenient truths, as this will lead to irrelevant scholarship that steers away from critical scrutiny of the state. It will lead to a society that is unable to resolve its most pressing problems”.

Progressive, socially engaged scholars, she argues, will be the biggest losers, “and these are the very scholars who are in short supply in an increasingly timid and inward-focused South African academy”. And she adds a warning: “The Bill represents the single biggest threat to academic freedom since 1994. While the media and civil society have mobilised admirably against the Bill, universities have been largely missing in action. Now is not the time for silence”.

Professor Duncan is right. It is time for the academy to rejoin the debate and to play a constructive role as this proposed legislation goes to the very heart of our democratic project.

At the centre of this outpouring of concern is a fear that the state and its organs could use this legislation to cover-up corruption and incompetence, and that once written into law, the Protection of Information Bill will become a shield behind which corrupt and venal public servants, from politicians and civil servants to municipal managers and security agencies, can hide from public scrutiny and avoid being held accountable. Interestingly, this phenomenon of poor accountability of organs of state has been identified by the National Planning Commission as one of the nine most critical risks to building a democratic, united and prosperous society.

Through this cacophony of voices runs a golden thread: that the Bill in its present form proposes unacceptable limits to freedom that ultimately would diminish the democratic character of our society.

It is precisely because of our historical experience that these concerns are being voiced so stridently now. Who could forget the plethora of laws that frustrated and limited access and the free flow of information and which acted to protect the undemocratic exercise of power by the apartheid state. Laws such as the Suppression of Communism Act, the Defence Act, the Official Secrets Act, the Prisons Act, among others, were all legal instruments designed to frustrate and limit access to the free flow of information. They all worked to maintain a veil of secrecy behind which apartheid apparatchiks could exercise their will free from public scrutiny and accountability.

We see similar limits on freedom today in parts of the western world where, under the pretext of the ‘war against terror’, significant incursions have been made into the rights of citizens. Such limits on citizens’ rights have turned these societies inwards, polarised their citizenry, fanned the flames of xenophobia and racism, and have increasingly eroded the openness and transparency that was once their most admirable features.

We should be careful that we do not also capitulate to the ‘securocrats’ within our state and repeat these same mistakes for short-term political gain. After all, our society has only been democratic for a short while, and its foundations are still very tenuous. Allowing a serious attack on such fragile democratic institutions could unleash forces that unravel the democratic character and foundation of our society.

Should there be limits to freedom? Of course. Freedom does not imply licence to do anything and democracy is not a free-for-all. Hate speech could be argued as a limitation on freedom of expression but no right-minded citizen would argue for the unfettered right to a ‘freedom’ that incites hatred against others. Some among our artists and musicians and even our politicians – the latter both in the ruling party and within the opposition – should take note that complacency in this regard was the slippery slope to the Holocaust.

While modern democracy advocates freedom of sexual expression, who would seriously argue for a ‘freedom’ that leads to adult predation of children? Or the ‘freedom’ for medical experimentation on the mentally ill or ‘freedom’ to end the life of the economically unproductive or of criminals for that matter? There are many and varied examples of democratic limits on freedom, but these should always be predicated on the greater good.

Equally every state has secrets and those secrets need to be protected in the national interest. But again national interest needs to be clearly defined and predicated on the greater good and not on the narrow interests of special interest groups. One of the key criticisms, for example, of the Protection of Information Bill is precisely what the drafters of the Bill mean by the ‘national interest’ and who rightly decides what is in the national interest.

Criticism is easy though. But what can be done? And, more precisely, what should be done by the academy to assist the democratic project in this particular instance?

It appears clear to me that the Protection of Information Bill in its present form is flawed and divisive and that it needs greater consideration. I would like to suggest that the academic community’s Law Deans, supplemented by some of the best minds from across the university system, form a working group with government to redraft the legislation as a starting point.

The outcome of this working group should be widely debated in the hope that collectively we can frame draft legislation that satisfies the state’s need to protect sensitive information but which at the same time satisfies the democratic rights of citizens to access and disseminate information that impacts on their lives.

We should not shy away from this difficult but necessary task as it goes to the very root of our democracy. Creating a legislative framework for the future security of our democracy should not be rushed or ill considered. My hope is that what we construct today will become the bedrock on which a stable and robust democracy can take root. Get this wrong and we are on a slippery slope to tyranny and a failed state.

Ihron Rensburg is Vice-Chancellor of the University of Johannesburg and the current chairperson of Higher Education South Africa (HESA), the overarching body of South African universities.

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