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South Africa: Protection of Information Bill Controversial

(Aug. 16, 2011) On August 10, 2011, the South African organization Open Democracy Advice Centre (ODAC) issued a statement criticizing a clause of the Protection of Information Bill as unconstitutional. (“Secrecy Bill – Whistleblower Clause Unconstitutional,” ODAC website (last visited Aug. 15, 2011); Info Bill Clause Flouts Constitution: Lawyer, SOUTH AFICAN PRESS ASSOCIATION (SAPA) (Aug. 10, 2011), World News Connection online subscription database, Doc. No. 201108101477.1_daa70066ca45a51e.) The statement was based on an opinion ODAC solicited from two Capetown attorneys, Colin Kahanovitz and David Simonsz. (Legal Opinion, Exparte: Open Democracy Advice Centre, In re: The Operation of Section 38 of the Protection of Information Bill (last visited Aug. 15, 2011).)

The bill had been controversial since its reintroduction in Parliament in the middle of 2010. Critics accused the government of trying to inhibit the media and prevent citizens from learning about government actions. The new ODAC-commissioned opinion calls into question section 38 of the bill, which makes it a crime to disclose classified information; the punishment would be from three to five years of imprisonment. There is an exception in the legislation for disclosures protected under the Protected Disclosures Act and the Companies Act. (SAPA, supra.)

The opinion cites the Constitution of South Africa (1996, in effect from Feb. 4, 1997, SOUTH AFRICAN GOVERNMENT INFORMATION (last visited Aug. 15, 2011)) and various international documents, such as the Universal Declaration of Human Rights (United Nations website (last visited Aug. 15, 2011)), to argue that limits on freedom of expression and access to information must be very rare exceptions. (Kahanovitz & Simonsz, supra.) The authors see the bill as placing a too heavy burden of proof on whistleblowers to show that they are not guilty of any improper disclosure of information. (SAPA, supra.)