It's a cruel irony that many who fought against South Africa's white-minority regime and its harsh apartheid laws are now accusing the black-led African National Congress government — many of whom also fought the same battle — of instituting a law that is a throwback to those oppressive days. And what falls into the same category of irony is that the bill was created to get rid of a restrictive apartheid-era law.
The spark that provoked this potentially historic moment is the bill that the ANC-dominated Parliament passed last week 229-107, with two abstentions. It is officially known as the Protection of State Information Bill (pdf), which the government argues is necessary because existing law is not enough to protect the state against foreign spies. No explanation given regarding who those spies may be.
But while the bill may be aimed at foreign spies, at least 88 editors of South African newspapers signed a petition last week protesting the bill. They and others see the bill putting a lid on any information the state deems to be a threat to national security — constituting, in essence, a gag on the media. Critics say it is a threat to democracy.
And that is the twist of fate that has caused many of the country's liberation-struggle heroes — two of whom, Desmond Tutu and Nadine Gordimer, are Nobel laureates — as well as the foundation of fellow laureate Nelson Mandela, to join hundreds protesting the bill. The fact that the bill doesn't contain a public-interest-defense measure requiring that the public's right to know be weighed against the state's need to maintain security has spurred the Right 2 Know Campaign against it. More than 400 civil-society organizations and at least 16,000 individuals have endorsed the campaign.
Indeed, it looks as if this still-young democracy has arrived at another muddy crossroads as it finds its footing in the democratic space.
What is also fueling the protest is that the bill provides for a prison sentence of up to 25 years for anyone who reveals what the government deems it necessary to keep secret in order to safeguard the country's national security. Such a sanction would also apply to anyone who might be in possession of such material received from another party and did not turn it over immediately to the police or state security. Imagine what could happen to whistle-blowers in cases involving wrongdoing by the government or its officials.
In addition, critics are upset that a government promise of widespread consultations with the public never materialized.
The hue and cry has been far and wide, local and global, with headlines in South African papers like the one in the Star, proclaiming, "Parliament's Vote of Shame," and editorials like the one in Business Day, proclaiming on the day of the vote that every MP who voted for the bill would "at that moment take personal responsibility for the first piece of legislation since the end of apartheid that dismantles an aspect of our democracy — a betrayal to haunt them forever."
Popular columnist Justice Malala told CNN that this ANC is "not seen as the ANC of Nelson Mandela." And indeed, the foundation that bears Mandela's name has weighed in with fixes that it says will right the wrongs in the bill.
Dissent like this arises from the concern about growing corruption in the country, including among government officials at the national and local levels. The fear is that the kind of investigative journalism that has exposed much of it would be deemed a threat to national security and put journalists behind bars.
The government argues that this law is intended not to cover up corruption but to "safeguard national security," as government minister Trevor Manuel told CNN, adding, "There isn't a single country in the world that doesn't protect secrets."
A different take on it comes from Steven Friedman, director of the Centre for the Study of Democracy. He argues that the protests are largely from the middle classes, as opposed to the country's black majority, who are poor. "President Zuma," he recently wrote in Business Day, "has staffed the security cluster with trusted allies and this is why their desire to operate in the dark carries so much weight."
But Friedman says that the protesters have largely missed the mark. He argues that vital debate should focus on "how legitimate it is to allow intelligence agencies to keep secrets from us," and insists that it is important to understand that the debate must go beyond the media and the middle class, adding, "if … we understand that the chief victims of unrestrained official power remain poor and that poor people must play a key role in protecting all our freedoms, we may ensure that we not only hold onto the freedoms we have but ensure that more and more of us enjoy them."
The bill will now go to the other house in Parliament — the National Council of Provinces — which will take it to the people in the country's 11 provinces. But with the ANC dominating all but one of those provinces, it is unlikely that the bill will be changed before the NCOP reports back sometime next year. The bill will then go to the president for what looks like an inevitable signing.
Meanwhile, opponents have argued that before he signs it, President Zuma should send the bill to the country's highest authority on matters constitutional — appropriately named the Constitutional Court — for a judgment on its legality. And while that's a ways down the road, there are indications that the opposition is preparing for the long haul.
On Friday the National Press Club called for another "Black Tuesday" protest (so named because the bill was passed last Tuesday without public consultation) this coming week. Protesters have been asked to wear black.
In still another irony of the moment, the name "Black Tuesday" was borrowed from Black Wednesday, the day in 1977 when the apartheid regime banned the crusading newspaper the World and detained its black editor, Percy Qoboza, and its editorial staff.
Charlayne Hunter-Gault is a Johannesburg-based writer and journalist and frequent contributor to The Root.