You'll lose your right to know

Brendan Boyle: Spurred by a measure of self-interest, the South African media has devoted more space in the past year to the secrecy bill than to any single draft law other than the constitution.

Yet it seems to me that we are not getting the point across very well.

A recent TNS Research Surveys poll of urban adults showed that 81% wanted a free and independent media. Then last week a follow-up survey showed only 29% were opposed to the Protection of Information Bill now being hammered through parliament by a rampant ANC majority.

The sums don't add up. If four out of five wanted a free press in the first survey, how can fewer than one in three NOW want to defeat the single biggest threat to media freedom in the democratic era that began in 1994? The answer can be only that many people have not realised the extent of the threat posed by the bill.

It is a long and relatively complex piece of legislation inviting endless wrangles over nuances of terms, so it is not surprising that people with their own full lives to live have not stayed glued to the debate.

Many aspects of the bill make it important to your life and mine. It gives the heads of more than 1000 organs of state, from the Secret Service to the Sharks Board in KwaZulu-Natal, authority to classify information under their control as confidential, secret or top secret.

The bill specifies that classification may not be used to hide corruption or avoid embarrassment, but there will be no independent authority to assess if the power to create secrets is used well. But let's focus here on the aspect that most worries the media and one on which Cosatu has gone to war with its ANC allies.

Anyone using classification to hide abuse could face up to three years in jail with the option of a fine. But if a whistle-blower seeks to expose abuse, and can only do so by leaking classified information, that person will face a mandatory prison sentence of at least three years with no option of a fine. So, too, will anyone who fails to report the leak and anyone who accepts or uses the leaked document.

Stiffer sentences, without fine options, apply to the release of more sensitive information. Jail for up to 25 years is possible.

Despite reams of intricate legal argument by some of the best jurists and appeals from people like Archbishop Desmond Tutu, whose Truth Commission exposed extremes of power abuse, the ANC has refused to consider allowing a public-interest defence.

That means that a reporter accepting leaked secrets as the basis for an investigation will be liable to imprisonment for at least three years, even before a word is written. To ask for another document to bolster the case would make them liable to a separate charge of inducement, which carries the same penalty as the leak.

And if the newspaper goes ahead and prints the information to prove the malfeasance of some official or department, a host of new jail-worthy crimes is committed.

The editor who gives the go-ahead, the sub-editor who refines the copy, the printer who commits it to paper, the truck driver who carries the illegal secret out to the streets and the newspaper vendor who accepts your money and passes a paper through the window of your car could all go to jail.

One might argue that the state is unlikely to go that far, but history is replete with examples of bad laws written for one situation being abused by their former victims in a different era. The public-interest clause refused by the ANC would not give reporters or editors the right to decide what is in the public interest. Anyone in the publication chain would still be liable to arrest and, as recently with my colleague Mzilikazi wa Afrika, uncomfortable and possibly dangerous detention, before being formally charged.

Only then, in court, could those accused try to convince a judge that publication served a public interest and if they failed they would go to jail, without the option of a fine.

Even with provision for a public-interest defence, it would be hard to imagine the news that would make a leaker and a reporter willing to risk failing to persuade a judge and having to go to jail for longer than Shabir Shaik spent behind the bars of a jail or guarded hospital ward.

Whatever it is the ANC wants to be able to hide is so important that it is not willing to risk even this slender lifeline for whistle-blowers. If the bill goes through, as the ANC intends later this month, much that we deserve to know will remain a secret of the state forever.