Last week’s parliamentary vote for the Protection of State Information Bill shows us the country we could become, and it’s not a pretty sight. It’s not even so much the secrecy Bill as such that’s at issue, although the current draft retains some deeply worrying aspects, as many others have said.
The measure still has various hoops to jump through, and the National Council of Provinces may decide to take the opportunity for improvement.
The Bill will almost certainly end up in the Constitutional Court, whether referred by opposition parties in Parliament, the president or civil society. Already, preparations are being made for the case, even though the Bill is not yet completely through the parliamentary process.
The judges of the highest court will have the final say on the shape that our official-secrets regime will take. Some people feel this is a slam-dunk guarantee that the law will be struck down, but it would be unwise to rely on the court too heavily.
It is the underlying trend these events have made visible that is most worrisome. Journalists who were in Parliament for the “Black Tuesday” vote speak of being deeply troubled by the hostility and “gotcha” atmosphere from the MPs of the ruling party. There was a sense that the vote represented a victory over a hated enemy.
The media did not hold back either: black-clad editors marching out in unison make a pretty strong statement, and some of the reporting and commentary has been a bit hysterical.
The debate about the secrecy Bill has brought the ruling party’s animosity to the media more clearly into the open, but it is not new. Media and ruling party meet from time to time and declare that they respect each other’s role, but in truth tolerance seems to be shrinking.
Chris Vick, formerly the spokesperson for Housing Minister Tokyo Sexwale, has offered an explanation for this trend. “The ANC is increasingly looking like a struggle organisation that is struggling to govern,” he argued in a recent article for the Daily Maverick: not to rule, but to govern.
The challenges facing the country are enormous. The National Planning Commission recently itemised the list, ranging from unemployment to education, from crime to corruption and many other issues in between. Solutions are in short supply, and disenchantment is growing, as shown by the growing wave of service-delivery protests.
In this scenario, free flows of information just don’t work in the ruling party’s favour. “Unless we turn some sort of magical corner, the more the ANC gets a bloody nose on these battlefields, the more it is likely to come up with other measures like the secrecy Bill,” writes Vick.
Over the years, there have been various attempts to bring the media onside. In the early years of democracy, these calls were legitimate, because they referred to the new order as such. But the pressure has since become more and more party-political, even where the language of transformation is still used.
The secrecy Bill sits squarely in this tradition. What has changed has been the language: now it’s not about transformation or race, it’s said to be about national security, a cause dear to securocrats everywhere. For now, this Bill may become the most substantial infringement of media freedom we have seen.
So where does the trend point? Vick believes the next item on the agenda will be a media appeals tribunal. City Press editor Ferial Haffajee echoed the prediction, tweeting just after the vote: “The way I see it, the media appeals tribunal can’t be far behind. It’s war now. And that’s OK.”
It is clear that the party was not united behind the measure or its handling. Many amendments were accepted in months and months of discussion in the parliamentary committee, and very recently some reassuring signals about further room to negotiate came from such as Deputy President Kgalema Motlanthe. But then, suddenly, a decision was taken to push ahead with the Bill. It appeared that the ANC’s democratic tendency, willing to listen to criticisms and attempt a compromise, was sidelined.
We have not seen the like before: this willingness to push a measure through in the teeth of strident criticism from an exceptionally wide range of groups.
If there is a silver lining here, it is in the way civil society mobilised around the issue. This has not been just the media’s issue. The full range of opposition parties, legal academics, luminaries such as Archbishop Desmond Tutu and Nadine Gordimer, the Nelson Mandela Foundation, the union movement and many others have expressed their opposition. The Right2Know campaign has worked hard to involve groups outside the middle classes, making the important point that freedom of information is an issue for the poor and marginalised, too.
Our constitutional democracy has a range of institutions to protect it, but the ability of civil society to mobilise may in the end be an even more important safeguard.
As Thomas Jefferson said: “The price of freedom is eternal vigilance.”
This column was originally published in The Mail & Guardian on Dec. 2, 2011.