Sometimes I wonder whether we would all not have been far happier if we had known absolutely nothing about what was happening in our world and if we were unable to remember – even for one week – how we had been wronged and hurt by others.
What if we had not been able to remember how the apartheid state oppressed and humiliated the majority of South Africans? What if we had no clue that some people in South Africa are fabulously rich while many others are desperately poor? What if we were blissfully unaware that Ministers stayed in the lap of luxury and that unscrupulous businessmen were bribing many of our politicians and parastatal bosses – sometimes by paying them rather insultingly small amounts of money or giving them small discounts on ridiculously luxurious cars?
What if we all had long since forgotten how our erstwhile lovers, spouses or work colleagues had humiliated and hurt us with their prejudice, callousness and selfishness? What if we could not remember the day that Bafana Bafana lost 3-0 to Urugay or the day one of our parents died?
Such thoughts quickly lead me to the rather startling realisation that this kind of world would not be a world worth living in. Such a world would not be inhabited by flesh and blood human beings possessing an inherent human dignity – human beings who feel pain and joy and anger, who form opinions and later change them, who take action about what they perceive to be wrong or acquiese in injustice, who hurt others and are hurt in return, who forgive or continue to hate - but rather by dull semi-automatons with few feelings and little agency.
This insight (in as much as it is an insight at all) lies at the heart of why I believe that the proposed Protection of Information Bill – which I have already written about before - is such a fundamentally flawed and even dangerous concoction. This is also why I profoundly disagree with an article written by one Paul-Michael Keichel and published in today’s Business Day in which he dismisses concerns expressed about this deeply reactionary and oppressive Bill.
Keichel advances several arguments to justify this rather startling endorsement of a Bill that represents such a fundamental attack on the human dignity and freedom of every South African.
First, he argues that no right is absolute and that rights can be limited where ”legitimate state interests are served”, implying that a legitimate state interest would be served by a Bill that allows state officials to prevent the rest of us from ever knowing anything about any document if they believe information in that document may “harm the national interest”. Remember, the national interest is defined so broadly in section 15 of this Bill that it would include such vague and undefinable concepts as “the advancement of the public good”, the “pursuit of justice, democracy, economic growth”, (no mentioning of Miss World and World Peace) ”free trade, a stable monetary system and sound international relations”.
This is of course a ridiculous and legally untenable argument. It fails to take cognisance of the fact that when one decides whether it is justifiable to limit a right, one should do so by asking what is reasonable and justifiable in an OPEN and DEMOCRATIC society based on HUMAN DIGNITY, EQUALITY and FREEDOM. One should also ask whether the law strikes the correct balance between the legitimate state interest and the interest of every individual who is being deprived of the information. One should ask whether the limits placed on that individual’s rights are so severe that it just does not justify the law – even where a legitimate state interest is being served by that law.
Because receiving information – even information that is upsetting, or information that will make us worry or feel fearful about our government – is absolutely essential if we are to live meaningful lives as human beings with an inherent human dignity, limits of the right to receive information should be kept to an absolute minimum. In an open and democratic society based on human dignity, equality and freedom we rather allow more information and more freedom – even if there might be potential harm to the state.
Only where it is absolutely necessary to keep information secret to prevent serious and irreparable damage to the state (not to be confused, of course, with the well-being of the governing party) should secrecy be allowed by the law. Information about troop movements in a time of war, for example, could be kept secret. As would information about arrangements to ensure the personal safety of the President. But information about South Africa’s secret diplomacy in Zimbabwe or information about how the NPA has abused its power in order to protect individuals to further the government’s goal of attracting more foreign investment, would not.
Second, Keichel, accuses those of us who have warned that this Bill presents a fundamental threat to democracy of “quote mining”, referring to sections of the Bill that indicate that the aim of the Bill is benign. The problem is that Keichel fails to understand that these sections are not the operational sections that would do the “legal work” – they are not the sections officials will use to decide whether to classify or not and are therefore pretty useless when one evaluates the possible application and abuse of the provisions of the Bill.
Section 15, which provides an extraordinarily broad definition of “national interests’ and thus allows for the classification of a vast array of documents, is the section that does most of the legal work, while the clauses Keichel refers to are the nice padding added by the drafters to try and pull the wool over our eyes. But apart from Keichel, few people have been fooled by these rhetorical flourishes aimed at hiding the authoritarian tendencies of the Bill.
Lastly, Keichel has no understanding of how government or the media works and does not understand that the Bill – if passed – will necessarily have a chilling effect on freedom of expression. It is true, as Keichel claims, that journalists will only be able to be prosecuted successfully if they can be shown to possess secret documents validly so classified. But he is wrong to say this means that the provisions pose no threat to media freedom and to the protection of our human dignity.
Because the definition of what would constitute secret documents is so broad, officials will be able to classify millions of state documents perfectly legally and journalists in possession of such documents will then be sent to jail for 15-25 years. This is not the kind of law that can be justified in an open and democratic society – unless one considers North Korea, Pakistan or Saudi Arabia open and democratic societies.
But even where documents are classified wrongly, this will not be of much assistance to freedom of the media. What journalist is going to be brave or stupid enough to hold on to the document in the hope that a court will eventually find that the document was wrongly classified as secret? What happens if you are tried before the wrong judge and you then have to spend 25 years in jail – all for having your byline in the newspaper? It is therefore laughable to claim that these provisions would not prevent journalists from doing their jobs.
No, the Bill as its stands is untenable. If passed it would plunge us into a world where we will be oblivious about much that our government does. And while this might take some stress off the experience of reading the newspaper every morning, it will condemn us to half-lives: sleepwalking through a life that we do not fully inhabit and a world we do not belong in or care about.
Spot on. Let’s hope that Keichel does not advance beyond being a candidate attorney. His thoroughly dishonest drivel reminds me a lot of the type of propaganda dished up by the creepy Ranjeni Munusamy.
Any member of this country’s news-reading public should be pretty clear about what the ANC is doing and why. That is, the party’s ridiculously obvious stratagem (a facet of which is taken care of by this Bill) can be distilled to three equally objectionable parts: suppress, prevent, intimidate. Here’s that stratagem in a nutshell: get this Bill passed into legislation and thereby gain the means to suppress any information that could prejudice the party – or, more correctly, the party’s clout-wielding figures. Prevent bodies tasked with delivering justice (being the SAPS, NPA, intelligence agencies and even the courts) from building, pressing or accepting cases against the wise-guys in the ANC fold. Use some of the foregoing agencies to cow any contrary voices into timidity.
And as to why the ANC is doing all of this, leaving aside the point that the ruling party’s goal is pretty basic, one has to say it’s quite grand: total domination.
In sum, the ANC’s obvious hostility towards constitutionalism taken together with the constitutionally offensive content of section 15 of the Bill shows quite clearly who these people are.
Perhaps it would be easier to forget the horror, corruption and evil we see perpetuated daily, if it wasn’t happening daily.
I agree with Leigh’s post above which I suspect he has written with true insight. “Total Domination!”
Is there an answer for those of us who care, apart from speaking out about the selfish dishonest abuse the people receive. And are the people abused any different in principle than they themselves abusing the weaker amongst them.
As I see it, self interest in inclusive everywhere.
Law of the jungle, not just in Africa, law of the strongest which overwhelms the weak.
I note today that one of federal SA’s least favorite individuals, Stephen Lewis, former head of UN Aids for Africa, who has been long banned from entering SA, is now building a case for the ICC to charge Zimbabwe for its deliberate rape activity prior to elections.
See
http://www.mg.co.za/article/2010-07-21-call-for-icc-to-probe-zanupf-rape-campaign
Note the comments, many of them will encourage vomiting.
I’m gradually moving towards the eastern view that life is an illusion, so much cruelty and horror, when love, joy, mutual pleasure and growth is so available for those with a compassionate conscience. Gawd, the ignorance is so enveloping.
Sorry, Prof, I like Keichel’s article; at this stage of my career, it consoles me. And I agree with Sirjay about life as an illusion.
“Take the life-lie away from the average man, and straight away you take away his happiness.” (Henrik Ibsen)
In a perfect world, Keichel might have some valid points. However, we do not live in a perfect world and once this bill is passed into law it will almost certainly be abused by those to whom democracy is anathema. Such anti-democrats are very thick on the ground in South Africa and Keichel does not make any allowance for this reality. He is simply naive and superficial in his analysis.
To argue that there are provisions that protect those who are falsely accused simply ignores the fact that such innocents will be swamped by the political and financial muscle of those who wish to silence them.
In other words even if the legislation is innocent in intent it will most probably be very anti-democratic in its implementation. It is the thin edge of a totalitarian wedge
Having read both articles, I can understand why the Prof. might feel the need to respond so to Keichel’s submissions, but am not convinced that it is quite as clear cut as is made out.
Kleinschmidt makes the point that Keichel’s naive analysis does not take account of reality.
Instead, Keichel concedes that the Bill is open to abuse, but qualifies that these are the people who are already prone to abusing the system either way – these are the people who would use Keichel’s “paper shredders” in any case. Does the Bill enable these people to be corrupt more than they already are? I’m not convinced.
The Criminal Procedure Act affords certain powers to police officials to affect an arrest. Also contained therein are certain “safeguards” against unlawful arrest etc. Some corrupt police officers use the threat of arrest to solicit bribes from the public. Does this mean that the CPA is a draconian piece of legislation? I think not! A piece of legislation should be judged on its legitimate application, not on how corrupt officials might slime their way around it.
And, on sliming their way around, after a brief perusal of the Bill, I have to ask whether there really is any incentive in abusing the Bill, as opposed to reaching for a box of matches. What of the review and declassification of secret information? Surely officials will realise that it takes one honest member of a review team to blow the whistle on an official who, for instance, covered up corrupt activities. That official will then face 3 years ON TOP of what he will get for corruption. Again, what incentive is there to stray from burning the document?
My brief perusal may have caused me to miss the section, but, where does the bill rank its provisions as to which will do the legal work? Surely, “you may not classify for X, Y and Z” is pretty clear. Why is it presumed that these will not find application? Is our entire administration corrupt?
And if, contrary to what the Prof. would suggest, these safeguards do find application, then what is left, S15 and all considered, is the information around troop movement, presidential whereabouts etc. Legitimate, no?
Is it really fair, therefore, to say that these safeguards are nothing more than the wool being pulled over our eyes? Is that not bordering on conspiracy theory? I don’t like to live in a world where I think everyone is out to get me, especially 16 years into a (relatively) smooth transitionary democracy.
The Criminal Procedure Act is also supposed
The Criminal Procedure Act is also supposed to protect our privacy by prohibiting unlawful searches. Every gun owner knows that individuals need statutory privacy protections including protection of our informational privacy. Half a million gun owners suffered illegal home invasions to inspect their safes, and suffered sharing of information about what firearms one has in the privacy of ones home with armed robbers and Gun Free SA. This Bill protects the state. Not individuals.
The effect on the media is going to be that anyone investigating any whistle-blowing, or corruption, or looking at documentary proof of mismanagement, is going to have to engage in a level of examination and self-sensorship not seen since the states of emergency.
IMHO the conviction of Jackass Selebi has sent shivers down ANC spines and they are not going to back of this Bill easily.
I’m not a legal person but it seems to me that what this bill seeks to achieve is to ‘switch positions’ with the press. Currently the press enjoy the freedom of being presumed innocent as they ‘ask’ questions of the state who are being made to squirm (and, rightly, are ‘assumed’ to be ‘up to something’ – as if guilty – again, often correctly so) as they “please explain”their way out of their actions.
With this bill it seems as if the press is going to be assumed to be guilty – of publishing ‘state secrets’ and ‘endangering the state’ and thus must expend its energy on defense and “please explain” how they got hold of this ‘truth’.
A neat bit of WWW (the favorite pastime viewing of our jaded ‘tanies’)
Keichel is fantastically naive to believe that the Bill has enough safeguards.
There is no disinfectant like sunshine and the fewer secrets a country keeps the safer its citizens.
I cannot see how limiting media freedom is in any way constitutional. This is the thin end of the wedge and laws such of these should not see the light of day.
Brett already has his hands full with an Apartheid offspring in the FCA. It would appear that more and more legislation is being drafted to protect the State against the citizen and not the other way around as it should be in a constitutional democracy.
There is nothing you can say which will convince me that this Bill (and other legislation of this type) is justified or necessary. I cannot fathom how S36 can be used to protect State interests over the interests of the citizens.
Zoo Keeper, have you been able to spot the mischief that this Bill purports to address?
@ Christine, give them hell!
There are always two sides to a story;
http://www.sowetanlive.co.za/news/2010/07/22/worker-fired-for-sex-change
Zoo keeper said :
“It would appear that more and more legislation is being drafted to protect the State against the citizen and not the other way around as it should be in a constitutional democracy.”
Too true, as a citzen I don’t see how this bill will help me make a more informed decision at the next election, which is i guess the whole point.
@ Hamster, whistle blowers tend to be treated as villans rather than heros, (Vavi springs to mind, as does the prof who commented on our water situation ) which is hardly encouraging to them, and an example to others
@PdV thanks for all your insights / topics I find them keen and thought provoking.
Brett
You mean besides protecting the Executive from public scrutiny?
In that case no, can’t see anything: just another means of protecting vested interests and covering up the mess.
Same here. Only mischief one could possibly see being addressed is the mischievious media.
I see Malusi Gicgaba is using porn and the fact that children “might be able to view porn” as his excuse to introduce internet filters to deny adults their guilty pleasures.
His latest statement is that we must emulate China, the United Arab Emirates and Singapore in deciding what content local internet users can view. What incredible role models of freedom those jurisdictions are!
So we have an attempt to control the press, the introduction of internet filters to control what we view (don’t even think they’ll limit this to porn), the launching of a newspaper and working documents that state the media and press must be controlled and “transformed” into praise-singers.
Whatever freedoms the ANC stood for is looking deceased. Those blind followers take note – this is how the National Party went (no wonder Pik Botha et al joined the ANC).