The Social Justice Coalition and Equal Education are gravely concerned about the draft Protection of Information Bill (“POIB”) currently being debated in Parliament. As non-governmental community-based organisations working in an open and democratic society, one of our primary functions is to hold government to account. If passed in its current form, the POIB would fundamentally undermine our ability to perform this role. Beyond government accountability we struggle for social equality and freedom, goals we know cannot be achieved without freedom of information.
We therefore join other non-governmental organisations and civil society groups in condemning the Bill’s potential to severely restrict the ability of people living in South Africa to exercise their democratic rights to freedom of expression and access to information. We applaud the efforts currently underway to achieve concessions from the government in the hope of producing a constitutionally permissible piece of legislation.
Equal Education is a movement of learners, parent, teachers and community members working to build quality and equal education through analysis and activism. Led by young people, its primary goal is improving South African’s schools.
The Social Justice Coalition is a community organisation comprising individuals living in poor underdeveloped communities. It campaigns for improved safety and access to basic services.
Our ability to perform these functions and to hold government to account will be severely compromised by the POIB if it is passed in its current form. The Bill, in its current form:
- Allows officials in almost all organs of state to classify information;
- Criminalises the publication or possession of classified information, imposing heavy penalties and sentences of imprisonment on those who do so;
- Gives officials a wide discretion to classify information, which will permit abuse by dishonest officials.
Several of our current campaigns and projects depend for their effectiveness on the ability to access information by the state.
In 2010 the Social Justice Coalition used the Promotion of Access to Information Act to force the City of Cape Town to release a secret forensic report into the open toilet scandal in Makhaza. The release of this information illustrated that the process was flawed and that the City acted in contravention of the law, and resulted in enormous public pressure being placed on the City.
Equal Education has used legal pressure to obtain information from the Western Cape Education Department which revealed massive inequality in literacy and numeracy abilities at grades 3 and 6 levels. Similarly, all South Africans remember the need for public clarification regarding the adjustment of the 2010 matric results; the POIB in its current form would allow such information to be suppressed.
The Social Justice Coalition and Equal Education do not seek such information from organs of state frivolously. The information that is sought is reasonably necessary to ensure that our social campaigns are factually informed, that our members are educated on their rights and how to claim them, and so that we can engage with the state to facilitate better realisation of rights. The availability of information is essential to our effective functioning in the democratic arena.
The POIB would make it possible for organs of state to prevent our organisations from accessing this kind of information merely by classifying it as secret. This would be a massive setback to our organisations.
In our view, if the Bill is to withstand constitutional scrutiny and be considered reasonable and justifiable in an open and democratic society based on freedom, equality and human dignity, it will have to be significantly revised. We fully support the Right2Know Campaign’s call for the amendment of the POIB, in at least the following respects:
- The ability to classify information must be restricted to core state bodies in the security sector, and only information relating to defined issues of national security should be permitted;
- Reasons must be given when information is classified;
- The POIB must be made consistent with the Promotion of Access to Information Act 2 of 2000;
- A truly independent mechanism for the review of decisions to classify information must be provided for by the POIB; and
- A public interest defence should be included in the Bill to allow disclosures that are in the public interest to be made without risk of criminal prosecution.
People living in poor communities that rely heavily on the State will be worst affected by the POIB. We urge the Right2Know Campaign to direct all of its energies against this Bill, and to bring the campaign into our communities and townships; tasks to which we also commit ourselves.
We urge government to respond appropriately to the legitimate criticisms of the POIB, and not to use its parliamentary majority to pass it in its present form. The Bill constitutes a significant threat to the healthy and rigorous civil society that has developed in South Africa since the advent of democracy.
Though openness and transparency are founding values of the South African constitutional order, they are values that remain imperilled in practice in our country. Rather than giving effect to our democratic constitutional values, the POIB is a step backwards, towards an authoritarian and secretive state in which the right of access to information is made subject to the whims of bureaucrats and state officials.
We call on the government to recognise that the POIB is not in accordance with the values of the South African Constitution, and to amend it accordingly.