The Future of Information Leaks

By Jane Duncan · 2 May 2013

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As South Africa commemorates another World Press Freedom Day, this day will no doubt focus minds on Parliament’s decision to pass the controversial Protection of State Information Bill, or the Secrecy Bill. It will now be forwarded to the President for signing.

There are still many fundamental problems with the Bill, but it is greatly improved from previous versions. These improvements have shown that the most secretive sphere of government – the security cluster – is susceptible to public pressure. This Bill, coupled with important changes to a related Bill, the General Intelligence Laws Amendment Bill, attest to the power of an united and organized civil society to resist attempt to securitize the South African state. 

Yet, civil society was unable to win more extensive protections for whistle-blowers. The Secrecy Bill’s protections remain narrowly conceived, and the fact that the Bill does not contain a full public interest defence that includes a range of public interest matters that fall short of outright criminality, is a fundamental problem. As a result, whistleblowing on such matters in the security cluster is likely to be stunted.

A case in point is the leaking of information by soldiers involved in the Central African Republic (CAR) saga that resulted in the deaths of fourteen South African soldiers. This information challenged the official version of events, namely that the soldiers were there on a capacity building exercise, and supports the Mail and Guardian’s assertion that the army was deployed to protect the ANC’s economic interests in the country, in the face of a pending coup.

Reportedly, military intelligence is conducting a witch-hunt to identify those responsible. It is this kind of information, that is undoubtedly in the public interest and that raises fundamental questions about security cluster policy and strategy, that is unlikely to be covered by existing protections.

The military is a troubled institution. It has suffered massive budget cuts, turning it into a pressure cooker of discontent. Politicians are attempting to make the case for increasing its domestic deployment – until recently a post-apartheid policy no-no – and a number of its African interventions appear to have been motivated by grubbier intentions than pure peacekeeping.

Excessive control of military information will make it infinitely more difficult for the public to question inappropriate troop deployments in future, making it easier for the Zuma administration to turn the institution into its praetorian guard on foreign (and even local) policy matters, if it so wishes.

Whistleblowing remains a risky, even deadly business. Many suffer long-term occupational detriment, and some have been murdered. With the exception of trade unionist and ANC councillor Moss Phakoe – whose murderers were prosecuted in a rare victory for whistle-blowers - most of their murderers still remain free.

The existing protections afforded by the Protected Disclosures Act, which the Bill recognizes, are too narrowly conceived to make a significant difference, as they extend protection from occupational detriment for a very limited period only. Furthermore, the Act protects only those who make disclosures in the workplace. Community whistle-blowers are not protected.

In recent years, important information about security cluster abuses has been leaked. But some leaks have been politically motivated, designed to advantage one or the other faction of the ruling party. Leaks (presumably) by Zuma loyalists in the security cluster were crucial to ensuring Zuma's rise to power. In fact, it’s likely that Zuma would not have become President without such leaks.

The leak of the now-infamous 'Browse Mole' report - which alleged that the Libyans and Angolans helped to fund Zuma's election campaign secretly, and that there was regional support for a Zuma-backed military coup against Mbeki - was clearly designed to advantage Zuma's campaign for the Presidency, as it allowed him to be portrayed as a victim of a conspiracy to keep him from power.

Then the leaking of recordings of intercepted phone conversations suggesting that Zuma's corruption trial was timed to take him out of the Presidential race, and that former president Thabo Mbeki, was in on the deal, led to the withdrawal of corruption charges against Zuma. But, if the security cluster is so concerned about the integrity of its classified information, then why is there is no evidence of those responsible for this leak being identified and prosecuted?

The Secrecy Bill isn’t likely to plug all leaks of classified information in the security cluster. Rather, what is likely to happen is that the selective leaking of information that has become apparent in the recent past will become the order of the day. Those leaks that advantage the Zuma administration are likely to continue, and even intensify, while those leaks motivated purely by the public interest are likely to dry up. 

It is likely that the people responsible for politically motivated leaks will not be prosecuted, given that the National Prosecuting Authority (NPA) has proved itself eminently capable of selective prosecution, to Zuma’s advantage. However, it should surprise no one if the NPA pursues information leaks that threaten Zuma's Presidency.

South African journalism is already too reliant on leaks for game-changing stories. The danger of leak-driven journalism is that the media can quickly become the tools of competing factions in the ruling party, using them to rubbish their opponents.

If these unprincipled leaks intensify, then they will put the media in something of a predicament: run the story based on the leak, and risk furthering nefarious agendas, but don't run the story and risk suppressing information that may be in the public interest. These dilemmas are likely to increase in frequency, and it'll take a strong media to navigate these treacherous waters.

However, many newsrooms have been cut to the bone to save costs in the wake of the global recession. Leaks can be sexy; they create the impression of exclusive access, but they can also encourage scandal-driven journalism rather than journalism that encourages intelligent debates on policy issues. 

A related danger is that news agendas are likely to be driven even more by corruption scandals, which is information that cannot be classified in terms of the Bill. While these stories are important, they tend to individualise the problem, and have not been particularly effective in addressing systemic corruption. Problems that are unconnected to corruption, such as ineffective use of resources in the cluster, may begin to fall under the reporting radar. With less attention being paid to policy shifts, more processes inside the security cluster, and its impact on the country’s politics, are likely to remain hidden from view.

Another likely effect is that research which attempts to analyse the deeper processes at work in the security cluster may become more difficult too, leading to important knowledge being lost in the security domain. At this crucial moment in its history, South Africa can ill afford these gaps in its understanding.

But all is not lost. Civil society has made it clear that it will continue to fight the more regressive elements of the Bill and support the principle of public interest whistleblowing. The fact that this fight has had so many small victories along the way shows that South Africa’s political system still remains robust and open to contestation. This remains an important message of hope to bear in mind on this most troubled World Press Freedom Day in post-apartheid history.

**Disclosure: The author is a National Working Group member of the Right 2 Know Campaign.

Duncan is a Professor of Journalism at the University of Johannesburg.

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