Tuesday, August 24, 2010

South Africa's Public Information Bill

President Jacob Zuma and the ruling African National Congress are reportedly pushing a bill designed to classify--and limit access to--certain government, commercial, and personal information.  But opponents of the measure argue that the government could use the bill to crack down on media, with which the government has had increasingly strained relations.  AllAfrica.com reported most recently here and here

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The measure, called the Protection of Information Bill, provides for classification of information by any "head of an organ of state" and for punishment of individuals who release classified information.  At its most sweeping, the bill provides for classification of "sensitive information"--"information which must be protected from disclosure in order to prevent the national interest of the Republic from being harmed."  Sec. 14. 

And what is the "national interest"?  Among other things, "all matters relating to the advancement of the public good."  Sec. 15(1)(a).

The bill provides for an appeal of a denial of a request for reclassification, but only to the "Minister of the organ of state in question."  Sec. 32.  It also outlines in broad terms the principles to be applied in the classification and declassification processes--for example, to respect the South African constitutional right to access to information.

The bill has come under heavy criticism by media advocates and non-governmental organizations as paving the way for government intimidation and harassment of a South African media that is increasingly critical of excesses and self-dealing by government officials.  The bill provides up to 25 years imprisonment for obtaining or releasing "sensitive information" (as defined above) if the disclosure may "cause serious or irreparable harm to the national interests of the Republic."  Sec. 39(1)(b)(i).  Lesser sentences may be imposed for less serious harms.

The ANC is also considering adding a media tribunal that would regulate print media, although that proposal is not (yet) part of the bill before Parliament.

President Zuma defended the measures in a letter on the ANC on-line newsletter ANC Today.  Zuma turned the focus on the media, asking

[W]hat is the role of the media in the promotion of our country's human rights culture and the Bill of Rights?  Does it have a role in promoting nation building?  Does it have a role to play in the promotion of our country's prosperity, stability and the well-being of its people?  Is it a spectator, or does it have vested interests and an agenda, political and commercial, that it cherishes and promotes?

And: "The media has put itself on the pedestal of being the guardian. . . . [W]ho is guarding the guardian?"

The South African Constitution contains capacious rights to expression and information.  Section 16, Freedom of Expression, states:

(1) Everyone has the right to freedom of expression, which includes

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hate that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Section 32, Access to Information, states:

(1) Everyone has the right of access to

(a) any information held by the state; and

(b) any information that is held by another person and that is required for the exercise or protection of any right.

(2) National legislation may be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

Neither Section 16 nor Section 32 is nonderogable, and both are subject to the limitation-of-rights provision in Section 36 that outlines principles and factors to determine when the government may limit rights.

SDS

http://lawprofessors.typepad.com/conlaw/2010/08/south-africas-public-information-bill.html

Comparative Constitutionalism, First Amendment, Fundamental Rights, International, News, Speech | Permalink

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