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Dear Friends

I have refrained from any public comment on the introduction by the Government of the Protection of Information Bill, as I felt that the ad hoc committee would by now have been persuaded by the weight of opposition of this measure, to take this appalling measure back to the drawing board. Also, since the Bill makes such wide-ranging changes to the present law with the most severe penalties, I have known that the relevant ministers should have felt it necessary either to defend the Bill or to place amendments.

Since this has not happened, my conscience will not let my silence be misunderstood. I ask all South Africans to join me in rejecting this measure in its entirety.

This Bill is so deeply flawed that tinkering with its preamble or accepting a minor change here or there will not alter its fundamental nature, that it does not pay sufficient attention to the nature of freedom of expression.

The Constitution is quite clear – in Section 16 it embraces this right as including freedom of the press and other media. But the Constitution goes further, taking into account recent developments in that it guarantees freedom to receive or impart information or ideas.

My appeal, as a loyal member of the ANC who played some role in the drafting of this section in the internal debates in the ANC, is to the Government to withdraw the Bill and to set up an independent and non-party political committee to draw up legislation that rightly emphasise the right of the state to protect legitimate state secrets, with a narrow ambit as to who will be qualified to do so and the onus on those who purport to demand such a classification.

My fear or anxiety is that if the Bill is forced through the ad hoc committee, people whose judgment I trust, will lose faith in the democratic process.

It is unsatisfactory to expect the Constitutional Court to do the work that Parliament should be doing. I feel that the executive has not given sufficient attention to the constitutional provisions and the way that the limitation of this right to freedom of expression is reasonable and justifiable in a democratic society.

There is no shame in withdrawing the measure and to go back to the drawing board. It was done by the previous administration concerning the Courts’ Bill. It is a measure of self-confidence to do the right thing in a right way. This is lacking at present.

If this does not happen, civil society will deservedly ask for the maximum public support to oppose the Bill in other ways.

Professor Kader Asmal
Professor Extraordinary
University of the Western Cape