SOMETIMES the national debate's confusions can help the grassroots citizens it usually ignores. This is surely why the Protection of Information Bill is being denounced by the media as a threat to journalists, despite the probability that it would do much to imperil the rights of citizens, particularly the poor, and little or nothing to threaten the media and those who work in it.
Media coverage of the bill has been long on rhetoric and short on accuracy and thoroughness. Any of us who have not been living in a bubble know that it threatens to allow the government to classify information and to jail anyone who publishes that information. What few of us know - including, probably, many who write and comment on the bill - is that section 17 qualifies this.
It stipulates that information may not be classified if the purpose is to conceal illegal acts, or "incompetence, inefficiency or administrative error" by the government. Nor can it be used to "restrict access to information in order to limit scrutiny and thereby avoid criticism" or to "prevent embarrassment to a person, organisation, organ of state or agency" or to "unlawfully restrain or lessen competition". These qualifications will not get officials to respect the rights of citizens, particularly the poor. But they should ensure that journalists, particularly those in the commercial media, will be protected.
To illustrate, compare two cases. In the first, a journalist finds out about government corruption and is told the information is classified. Given the media's track record, the likeliest outcome is that the information will not be published. Citizens will not know anything about it and will lose out.
But let us suppose that an intrepid media outlet publishes the information - and that its reporter or editor is prosecuted. It hires a defence lawyer, who shows the court that the report dealt with a government decision that breached section 17. The court is then obliged to acquit the journalist - and might also recommend prosecution of those who classified the information, since section 42 makes it a crime to classify information unlawfully. Prosecuting journalists would offer no advantage, and would soon be abandoned.
In the second case, a citizen's group in a township demands to know what has become of the money available for a development project. It is told by councillors and officials that the information is classified. Very occasionally, the citizens treated in this way may have access to public interest lawyers who can fight the case for them. But in most cases, their lack of means will prevent them from taking the case to court and the officials will get away with covering their tracks.
The protections in the bill may be ignored by officials who classify information, but they will shape the findings of the courts. And so, those with the means to challenge, in court, classifications designed to prevent media reporting on misdeeds or disadvantage private businesses will ensure that the law does nothing to them, while those who lack those means will be prevented from knowing what the government is doing. And since hiring lawyers requires money, the bill would disadvantage the poor rather than the affluent - and is more likely to make grassroots activism harder than it is to make journalism difficult.
The bill is a threat to democracy. But this is so not because it will make the life of journalists and media with access to competent lawyers difficult. It will make it far harder for citizens to know what is being done with their resources and their trust.
This has two related - and ironic - implications. There would probably be no high-profile campaign against the bill if the media had realised that it is likely to affect the poor rather than journalists and the people with whom they socialise - other threats to citizens' rights, such as a recent attempt to ensure that the government could not be forced to pay out people who sued it, received little media attention. And so, ironically, the failure of most media to analyse the bill accurately may be the only reason it has received so much attention and protest.
But the media reaction may also have ensured that some in the African National Congress (ANC) don't know what effect the bill would really have. While the Congress of South African Trade Unions has realised the implications and opposed it, there has been little or no public opposition to it from those in the ANC who claim to be opposed to the use of state power to enrich politicians at the expense of the people who voted for them. But, because its victims will not be the media people these politicians find irritating, but the citizens, most of them ANC voters for whom they claim to speak, the bill in its current form is certain to strengthen the practitioners of the politics of greed, which key ANC people insist they oppose. They need to look beyond the smokescreen and ensure the bill is not allowed to prevent grassroots citizens knowing what the government does.
- Friedman is director of the Centre for the Study of Democracy.