22 November 2011 marks ‘Black Tuesday’, as the Protection of State Information Bill was put to vote before the National Assembly. The intentions of the ruling party have been clear: all African National Congress (ANC) Members of Parliament (MPs) have been summoned to appear in Parliament and voted in favour of the Bill. Any possibility that the Bill will not be passed in its current form has essentially dissipated.
The South African government is one of the founding members of the Open Government Partnership, as of 20 September 2011. President Zuma in his address celebrating the Partnership stated: “The South African government is therefore unambiguously committed to espousing the principles of open governance”. The position is a simple one – however, the drafters of the Bill chose to defend it and it is clear that it does not maximise open governance as much as it could. The SA government’s position is thus clearly ambiguous. As the Declaration itself states “…open government is a process that requires ongoing and sustained commitment”.
Our government’s obligations did not end when the Protected Disclosures Act and the Promotion of Access to Information Act were passed. In fact, as Open Democracy Advice Centre (ODAC) has repeatedly stated, the attempt to rely on these Acts to forward the Bill in its current form ignores our sustained feedback that these open government laws have been poorly implemented and have several unassailable shortcomings that cannot serve as adequate protections against the potential abuse of the Bill once it is passed into law.
The Ad Hoc Committee has made several notable improvements to the Bill, but seemingly only as a result of consistent civil society pressure. ODAC has, since the time of our parliamentary submission, made clear and consistent criticisms of certain aspects of the Bill. Our criticisms have been constructive – several opinions have been drafted to assist the Ad Hoc Committee members in their attempts to render the Bill constitutional. However, this constructive criticism hasn’t appeared to be enough.
The exclusion of the public interest and public domain defences has been dismissed by Minister Siyabonga Cwele, as he believes that the inclusion of defences will mean that information will just be released regardless of its content. He fails to understand a very simple point: the creation of defences to crimes does not detract from the deterrent nature of a crime. A person does not freely commit murder because there is a chance that self-defence may exist – the risk of imprisonment, and the failure of a court to believe that the defence exists in a given case, is enough to ensure that people will only choose to rely on it if there is a reasonable chance it applies.
ODAC is saddened by the fact that, regardless of the content of the Bill, the majority party has seen fit to brush aside concerns from the public to further party – rather than citizen – interests. If anything, the path of the Protection of State Information Bill has shown that political interests trump citizen interests in the current political climate, especially where questions of open governance arise.
Gabriella Razzano is legal researcher at the Open Democracy Advice Centre.