An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
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.BACK TO TOP