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Jolanda Andrag
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SA needs to give whistle blowers the freedom and protection they need!

24 March 2014, 11:44

This year we are celebrating 20 years of democracy. We celebrate a constitution based on freedom, equality en transparency. We celebrate every positive change that came to be. Yet, we can’t deny the threat of the purposed Protection of State Information Bill in the current South African context. Transparency International places South Africa, 72nd out of 177 countries in their Corruption Perception Index of 2013. In 2001 we were placed 38th. Thus, we fell 34 places. 88% of South Africans believe that the police is corrupt and a further 36% admits that they have bribed a police officer. In the 2011/2012 financial year the South African Police Service (SAPS) spent R20.5 billion on civil pay-outs. Research also shows that 88% of public officials accused of fraud and/or corruption are guilty. Taking into account the unsolved Weapon scandal, Gupta-saga and the Nkandla debacle, it seems that people’s perceptions is reflecting the reality and then the state argues they want to protect us against so called hostile activities.

To unlock this debate we need to ask what the purpose of this legislation is, what the role of the state currently is and what it will become if this law is implemented. We also need to question the ability to classify state information given the public sectors reputation. Besides the matter of international guidelines, this can be a threat to the values people fought for during the apartheid era. First one must look at the role of the state.

The State as institution is created by the people and must govern for the people. In South Africa we strive towards a state as an extension of society. In line with the social contract, the state is there to enforce law and order, deliver services and to act as an intermediary between individuals and their goals. The state also extends itself to the judiciary system, nationalized industries and regulating the economy. According to Chapter 3 of the Constitution the state must work together in good faith and mutual trust by informing one another of, and consulting one another on, matters of common interest. Thus, one can argue that in terms of access to information the state and society must be a unit. This excludes information that is a direct threat to national security. The state governs on behalf of society, therefore it is only right that the state keeps society informed.

According to the Department of Government Communication and Information System, the purpose of the proposed so called secrecy bill is to “address the rising threat of espionage and hostile activities, the selling of information and the protection of critical databases in government, without impeding the constitutional rights of citizens to access information.

It will create a system for classification and declassification of information held by the State. In addition, it will protect valuable information while at the same time not inhibiting the free flow of ideas and information.” They further state they want to protect citizens from fear. Before we comment on the latter, let us compare the bill to international guidelines.

Article 19 of the United Nations’ International Guidelines address freedom of speech and the disclosure of information states the following:

Principle 15: No person may be punished on national security grounds for disclosure of information if (1) the disclosure does not actually harm and is not likely to harm a legitimate national security interest, or (2) the public interest in knowing the information outweighs the harm from disclosure;

Principle 16:“[n]o person may be subjected to any detriment on national security grounds for disclosing information that he or she learned by virtue of government service if the public interest in knowing the information outweighs the harm from disclosure”.

Principal 18: “[p]rotection of national security may not be used as a reason to compel a journalist to reveal a confidential source”.

Ironically enough, these principles are called “The Johannesburg Principles on National Security, Freedom of Expression and Access to Information”. After law experts agreed on these principles at the Wits University in 1995, the UN endorsed it every following year as the official guidelines concerning the matter. These principles do not reflect in the purposed bill. The bill only makes room for citizens to request information to be declassified, but the media argue they don’t have any guarantee, because the court needs to use the broad definition of National security as stated in the bill. Yes, it is a security bill and not a media bill, but it confines the media in such a way that the latter can’t fulfil their role effectively. Government and every state official must be held accountable for their actions. This can only happen when the public not only have access to information, but also receives the necessary protection. That said, when a whistle blower suspects something, gets access to information which can be a threat to national security and nothing unlawful is found, whistle blowers must take into account that they can be prosecuted if they distributed this information.

The above is a risk, but it is a risk we need to take. Given the current situation, where we have a dominant political party system, where the line between state and government is vague, a state and a security sector with a questionable reputation and the context of what the state’s constitutional mandate is and the international prescribed guidelines, we need to give whistle blowers the freedom and protection they need. At this stage in time it is our best option. The Independent Classification Review Panel is a good idea, but it is initiated by a state that doesn’t recall integrity.

The state needs to keep their constitutional mandate in mind when the propose legislation like the above mentioned. Furthermore, international guidelines are there for a reason. It is always a good idea to advise them, especially in the light that most Western countries have had decades to test these bills and thus knows what is effective. South Africans should decide what role they want the state to fulfil. One must realize the state is accountable to you, and therefore one must not allow the state to decide which information is to be made public. For this bill to be accepted, the state’s security establishments need to work a lot on their reputation, because it doesn’t invoke any trust to work with information that could promote accountability. Therefore, at this point in time, the proposed Protection of State Information legislation won’t work.

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