BOB GARFIELD:

Two weeks ago, South Africa's ruling ANC government won passage of the Protection of State Information Bill in the lower house of Parliament. Now it faces a vote in the upper house. If it becomes law, it will greatly expand the government's ability to classify information and to jail, for up to 25 years, those who expose state secrets.

Critics decry the secrecy bill as a giant step backwards towards the repressive policies of the apartheid regime, the very regime that the ANC drove out 17 years ago, as liberators of a new democracy.

But South African journalist Eusebius McKaiser, who I interviewed on our show last month, says reports of the death of free speech in South Africa have been greatly exaggerated. In fact, he says the debate over the bill marks a crucial stage through which all new democracies must pass. Eusebius, welcome back to On the Media.

EUSEBIUS McKAISER:

It’s an absolute pleasure to be back, Bob.

BOB GARFIELD:

Nelson Mandela is freaking out, Archbishop Desmond Tutu is freaking out, Nadine Gordimer upset. You, not so much. Why?

EUSEBIUS McKAISER:

[LAUGHS] I’m also upset, but I’m upset for different reasons. What I am against is that the bill will, in fact, make South Africa more a closed society rather than an open society, as imagined by our Constitution. However, the implications for media freedom, that has been exaggerated.

BOB GARFIELD:

Nonetheless, critics are concerned that the government will begin to classify material not on grounds of national security, as mandated in the law, but for anything that’s potentially embarrassing and furthermore, in that Pentagon papers scenario, would be able to jail journalists for bringing to light something that the public has a great interest in knowing.

EUSEBIUS McKAISER:

No, I think it’s absolutely right. There are many problems with the bill from both an administrative law point of view, as well as from a liberal constitutional point of view.

So, for example, the idea that the state security minister can have unfettered power to decide which individual departments can classify information, that’s a level of uncertainty that is not imagined in our administrative and constitutional law’s framework.

BOB GARFIELD:

The media and political opposition to the ANC have been vociferous in their criticism, but there doesn't seem to be a whole lot of outrage among the general public. They seem to be down with this whole notion of reining in government information.

EUSEBIUS McKAISER:

I think the media shot itself in the foot, Bob, by focusing relentlessly on the consequences of this bill for the newsroom. And many of their claims are accurate but, actually, the situation is worse.

I mean, if you’re in a local municipality and there’s  corruption going on, and you don't know about it because it's been classified, not only have you been robbed of money that could have been spent on improving the sanitation in your environment, the schooling system, but you’ve also been robbed of making informed political choices in the next election. That kind of connection hasn’t been spelled out. All we hear is investigative journalists might go to jail for 25 years.

BOB GARFIELD:

Under the Constitution, the Parliament is not the last word. That belongs to the court. You predict that this legislation, even if President Jacob Zuma signs it, is gonna wind up getting thrown out by the court, so that all of this fuss may turn out to be about nothing. You sure about that?

EUSEBIUS McKAISER:

Yes. I will eat my non-existing hat, if I turn out to be wrong. The bill gives too much unfettered power to the Minister of State Security, which goes against the precedent that has been set in the area of law called the administrative law, and that will be bringing constitutional arguments about the right to free information, for example. The  constitutional court judges will have a fun time deciding which of the many acceptable grants they should pick from to strike down this piece of heinous legislation.

BOB GARFIELD:

One final thing. Should we be concerned that the ANC would even go forward with this legislation, knowing that it's going to be doomed anyway? What does that say about the post-apartheid government of South Africa?

EUSEBIUS McKAISER:

You would hope that an ANC government consisting of folks who have experienced oppression and a state that is not open could become champions of openness. So to that extent, it is concerning and disappointing.

One also shouldn’t be too hasty about being doomsday prophets. In many ways, this is just a normalization of politics. When I lived in England as a student, when I attended Oxford University, there were debates there, especially after 9/11 in the States, debates about the extent to which the state should be given power, in a time of national security interest, for civil liberties to be suspended.

In many ways, South Africans are having an unnecessary existential crisis about this, rather than just having this debate; there are reactions which are taking place in Canada, England and even in America.

BOB GARFIELD:

Eusebius, thank you so much.

EUSEBIUS McKAISER:

You’re most welcome.

BOB GARFIELD:

Eusebius McKaiser is a political analyst, a journalist and a lecturer at Wits University in Johannesburg.