21 July 2024 | 12:46 AM

Advocacy: Ignorance will not bring bliss

Push for access to information

Key Takeaways

Do not go gentle into that good night/Rage, rage against the dying of the light.“— Dylan Thomas

As I grow older my death becomes easier to contemplate — after all, I am part of a larger organism that does not die but keeps regenerating itself.

And so, raging against the dying of my light is not all the rage for me. Leave that to the young and the foolhardy.

But life on Earth can come to an end too, and that scares me.

It seems that if whatever we do in our lifetime is just more traffic down a dead-end street, life itself is devalued.

Rage, rage against the dying of humanity’s light — against global warming, genocide and war; against social injustice; against the erosion of basic human rights.

Life may be defined by its relationship with death.

Sentient life may be defined by an equally simple concept: knowledge.

Children, we all know, will not share their toys until they learn that doing so increases the play resource base for all.

But some grown-ups never learn. Elites hog Earth’s resources.

Elites also hog knowledge — usually to obscure the hogging of resources, of course.

When we do not know what we are missing, we will not insist it be shared.

But there is a deeper problem.

Without knowledge we are like fools, ignorant of the true conditions of our existence.

The less knowledge we have, the less value our lives and all of sentient life has.

Rage, rage against each new limitation on our right to know.

Rage against the dying of the light.

Which brings us to the “Secrecy Bill”, now known as the Protection of State Information Bill, which is due for adoption by the National Assembly on Tuesday September 20.

First, two concessions:

One: Yes, although the info anarchist in me gags at the idea, it may not be completely irrational to argue that in an imperfect world the good guys might need to keep some secrets from the bad guys.

Even journalists protect confidential sources.

Two: Significant improvements were introduced during the parliamentary process.

These included a paring down of the scope and application of the Bill, leaving the obstacles to free information flows less pervasive.

But the Bill remains deeply flawed, a “toxic gruel” (to quote former intelligence minister Ronnie Kasrils) of bad drafting and antidemocratic, sometimes draconian, measures.

For starters, the Bill makes a state problem — how to keep state secrets secret — a problem for us all.

Instead of reinforcing the vaults at source by imposing stiff penalties only on officials who sell or otherwise leak secrets, the Bill will hit any citizen with up to 25 years in jail should we dare handle a classified record — often, if we just “ought reasonably to have known”.

This is likely to instil fear and inhibit free information flows throughout society.

Because less intrusive means of safeguarding state information are available, it constitutes an unjustifiable limitation on the right to freedom of expression guaranteed in the Bill of Rights.

Beyond that, the Bill does not contain remotely adequate escape valves — mechanisms to allow the exposure of classified information when the public benefit outweighs the supposed harm.

Yes, clause 19 of the Bill provides a procedure to request the declassification of classified records, particularly should they contain evidence of “a substantial contravention of, or failure to comply with the law” or “an imminent and serious public safety or environmental risk”.

However, the only way there is through a minefield.

To start with, an official who passes a classified document to a campaigner or journalist would take a huge risk.

Clause 43 is the basic measure criminalising the disclosure of classified records.

It specifies a sentence of up to five years but allows officials to claim whistle-blower protection under the Protected Disclosures Act.

But this is a narrow exemption and, even if it might apply, a vindictive prosecuting service could pick alternative clauses in the Bill under which to charge our official — clauses that contain no whistle-blower exemption.

The “hostile activities” offence, for example, imposes sentences of up to 20 years should the official only “ought reasonably to have known” that disclosure would cause “direct or indirect” prejudice to the national security.

And because the classification was supposedly done in the first place to protect the national security, that condition will prima facie be held to apply. Duh.

Assuming, however, that a brave official does pass a classified document to a campaigner or journalist, the latter faces a nasty choice of their own: immediately return the record to the police or the State Security Agency or risk up to five years in jail for the simple crime of unauthorised possession.

Do not take time studying the document to prepare for a declassification request — and do not pass “go”.

And again, alternative clauses might be available to a vindictive prosecuting service.

If the document has originated with the agency rather than the police or military, an alternative charge can land one in jail for 10 years.

Supposing, however, that these obstacles have been successfully negotiated and our campaigner or journalist, having at least temporarily possessed the document, comes to the conclusion that the information really, really needs to be exposed.

There will be two options.

One, apply for declassification — but how to prove your case if as much as admitting having seen the document can have grave consequences for you and your source?

Two, publish and be dammed — up to five years of damnation if the prosecuting service is nice and charges under the simple disclosure clause; up to 20 years if it chooses the “hostile activity” offence; and up to 25 years if it charges you with “espionage”.

With the latter, the only additional requirement is that you “ought reasonably to have known” that your disclosure would have the side effect of “directly or indirectly” benefiting a foreign state.

Without a public interest defence — the minimum civil society and opposition demand so steadfastly refused by ruling party MPs — this Bill will allow both corruption and imminent calamity to be covered under a cloak of secrecy, with no practical recourse.

It constitutes an unjustifiable limitation on the right of access to information guaranteed in the Bill of Rights.

Rage, rage against the dying of information rights!

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The M&G Centre for Investigative Journalism, a non-profit initiative to develop investigative journalism in the public interest, produced this story. All views are ours. See www.amabhungane.co.za for all our stories, activities and sources of funding.


Stefaans Brümmer is a ­founding member of the Right2Know ­campaign


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Before joining the amaBhungane team in 2017, Micah was the national coordinator for media freedom and diversity at the Right2Know Campaign. He holds a Masters in African Studies from Oxford University and a BA Honours in History from Wits University.

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