We all break laws on occasion. Anyone who buys a newspaper from a street seller is breaking the law by aiding and abetting a jaywalker and conducting commerce in a street without a licence. Anyone who has a computer connected to the Internet at home and has children in the house is breaking the law by providing them access to age-restricted material or to material that is otherwise banned in this country such as The Satanic Verses or Mein Kampf.
But sometimes, we break laws deliberately. I, for one, will routinely drive through red traffic lights late at night, fully aware that what I am doing is illegal but also that I have taken reasonable precautions to ensure that the road is clear. If caught, I am prepared to face the consequences; which will involve going to court and pleading my case. On this charge, I believe the court will rule in my favour more often than not; given that fear for my safety is a reasonable defence. I am still, however, breaking the law.
Investigative journalism is a lot like that. It involves obtaining information that is frequently out of the public eye. The process of obtaining that information is sometimes illegal. The publication of such information is frequently in violation of the constitutional rights of a person or people. Ultimately, the courts stand as arbiters as to whether any transgression of the law has been in the public interest.
This week, parliament meets to vote on the Protection Of State Information Bill. That bill has as its stated aims “To provide for the protection of certain state information from alteration, loss or destruction or unlawful disclosure; to regulate the manner in which state information may be protected; to repeal the Protection of Information Act, 1982; and to provide for matters connected therewith.”
Every country in the world has some variation of an Official Secrets act. As things currently stand, the law that governs us is the apartheid-era Protection of Information Act of 1982 because every law that existed during the apartheid era remains on our statute books until amended by other laws or repealed or struck down by the Constitutional Court.
The 1982 act says that anyone obtaining and disclosing state secrets shall be liable to imprisonment for up to 20 years. The provisions of that act are so wide-ranging that it would be possible for just about anyone in government to declare anything to be a state secret.
The Protection of State Information Bill as tabled last year went even further. It introduced minimum prison sentences for transgressions and allowed just about anyone in government to declare information to be state secrets. A substantial process of public consultation followed in which the bill went through 123 amendments. The version being voted upon this week removes minimum sentences, includes an independent appeal mechanism headed by a retired judge, and only allows state security services to classify information.
In other words, Parliament listened to public submissions and produced a bill which is, to my mind, in line with international best practice.
The National Press Club on the other hand is calling the bill “censorship” and is appealing to South Africans to wear black on the day of the vote as a form of protest. “Even wearing black armbands is encouraged. Let's tell the government we are all opposed to censorship. It's crunch time. The nation needs to unite and stop this nonsense," says NPC chairman Yusuf Abramjee.
And so once again, I find myself staring across a divide at colleagues in the media who to my mind have simply lost the plot.
This is not censorship. This is legislation which is line with most of the developed world and streets ahead of anything in the developing world. More to the point, I personally would have no hesitation as an individual in breaking the law if I believed it to be in the public interest. I would take my chances in court because I trust in the protections offered by our Constitution and its Bill of Rights.
I challenge my colleagues in the media to do the same.