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The Prevention of Scholarship Bill by Jane Duncan

9 June 2011

Christopher McMichael is a PhD candidate in the politics department of Rhodes University. His research investigates the ways in which the international governing body of football, FIFA, used the security arrangements for the 2010 World Cup to cannibalise public funds to the benefit of the Association and its sponsors. South Africa had to develop complex security plans and invest in state of the art security equipment to meet FIFA requirements, at huge expense to the taxpayer.

Policing culture also became more militaristic in the preparations for the mega-event, resulting in the introduction of the military ranking system in the South African Police Services (SAPS) and the “shoot to kill injunction.” In his research, McMichael asks whether the fact that no major security incidents took place during the event be attributed to the “success” of the security measures, or whether “mega-event security has become increasingly decoupled both from proportionality and perhaps even reality?” South Africa is now living with the legacy of having hosted a successful World Cup.

But the downsides have become increasingly apparent, with the Nelson Mandela Bay facing a massive debt crisis, and Johannesburg commuters being faced with the prospect of having to pay for the upgrading of highways through toll fees. The militarised policing style remains, and has led to several civilians being shot dead needlessly. McMichael’s research is important as it should make South Africans think about the costs of hosting mega events relative to the benefits.

In the course of undertaking his research, McMichael attempted to interview the police, but without success. As a result, he has to rely on documentation. He managed to access the Bid Book before the document was embargoed, which outlined, amongst other things, an assessment of the government’s capacity to meet the expected standard required of FIFA.

Then McMichael struck a researcher’s version of gold. A SAPS office in one host city refused an interview, but instead sent him a copy of their final security plan, in spite of the fact that the document was marked “confidential.” This document helped McMichael show how the safety and security measures were implicitly designed to benefit FIFA, while ostensibly being about guaranteeing public safety.

For instance, it showed how airspace restrictions were developed to prevent both ‘9/11’ style attacks and skywriting by non-affiliated brands, thereby revealing the extent to which ‘national security’ converged with corporate interests. If the Protection of Information Bill is enacted in its present form, McMichael could face a jail term of up to five years merely for having the document. He will be unable to continue with his research, as he will be unable to access the documents needed.

This is because in terms of the Bill, classification exists to protect national security, which is defined so broadly that any document that “creates disharmony” by, for instance, raising critical debate about the costs versus the benefits of mega-events, will be declared secret. McMichael’s source would probably be guilty of an espionage offence as this document – the contents of which could be extrapolated from McMichael’s research – could directly or indirectly benefit other states that are hosting similar mega-events. As a result s/he could face a jail term of between three to 25 years.

If McMichael is promised other documents, he will be harbouring or concealing a person that is about to commit an espionage offence, and is liable to a prison sentence of between five and ten years. His supervisor will be guilty of inducing another person to commit an offence if s/he identifies empirical gaps in the research and counsels McMichael to source other documents that turn out to be confidential. S/he will face the same jail term as the person who actually committed the offence. Presumably the same provision will apply to McMichael’s examiners. McMichael must report possession of the documents to SAPS or the National Intelligence Agency (NIA), or face a fine or imprisonment of up to five years. But even if he does so, he still opens himself and his source up to prosecution. He could also request the organ of state concerned to declassify the documents, which the Bill allows him to do “in furtherance of a genuine research interest or a legitimate public interest.” But the organ of state concerned has the right even to deny the existence of the documents, which means that in order to pursue the matter, McMichael would have to expose his knowledge of the documents’ existence, which would invite a security investigation into whether he already had access to the documents.

Also, the government decides what constitutes a genuine research interest, which conflicts with a fundamental tenet of academic freedom, namely the freedom to decide what to research and how. In any event, the Bill makes it clear that national security should take priority over academic freedom when the two come into conflict. Granted, the Bill has a safeguard preventing organs of state from using classification for nefarious purposes, including to avoid criticism or to prevent embarrassment. But the penalties for inappropriate classification range from a fine to up to three years imprisonment, and for an organ of state intent on evading public scrutiny, the benefits of secrecy may well outweigh the penalties.

Furthermore, there is no provision for written justifications for declaring particular information secret, which makes review even more difficult. However, a major advance took place in a recent Parliamentary hearing on the Bill, where the ruling African National Congress (ANC) conceded a civil society demand for the establishment of a Classification Review Panel. This panel is needed because the provision around inappropriate classification is virtually impossible to police practically, as there is no independent mechanism other than a costly court procedure to review decisions. But the panel envisaged by the ANC will not be independent of the Minister of State Security, and will report to a Parliamentary body that meets behind closed doors regularly.

The Bill appears to have an additional safeguard for researchers, in that scientific or research information not clearly related to national security may not be classified. But this will not get McMichael anywhere, given the overbroad definition of what constitutes national security. The fact that the Bill lacks a public interest defence, which researchers could use to justify their possession of documents, does not stand in his favour either. Neither does the fact that the Bill does not consider documents declassified, if they find their way into the public domain. All these problems tilt the Bill towards secrecy and away from openness, in spite of statements to the contrary in the principles. Other research on the state’s activities will also become impossible.

Consider the case of the Public Service Accountability Monitor (PSAM), affiliated to Rhodes University. The body monitors implementation of social accountability processes, and draws to public attention any abuses of public resources generally. Because of the profile the PSAM has built as an anti-corruption monitor and advocate, government and other whistleblowers send it unsolicited documents. Once the Bill is enacted, the PSAM will be guilty of a crime merely for receiving these documents if they are classified. The PSAM will probably not be able to access again documents like the Eastern Cape Provincial Government’s Rapid Assessment Survey on service delivery to 12 000 households in the province. This document revealed what the PSAM suspected, namely that the treatment rollout for HIV/ Aids was inadequate, leading the Monitor’s Head of Advocacy, Derek Luyt, to accuse the government of ‘unplanned genocide.”

In fact, once the Bill is passed into law, the PSAM may as well close down, as it will be unable to undertake its core business. Apart from circumscribing freedom of research (which will have an inevitable negative impact on freedom of teaching), another implication of the Bill for Universities is that – assuming they are defined as organs of state – they will themselves be required to classify documents. The Vice Chancellor as head of the organ of state will ultimately be responsible for classification.

This would mean that McMichael’s thesis (if he was lucky enough to complete it), as well as his supervisory and examination reports may all need to be classified, as well as PSAM research documents, which would make them inaccessible to the general university community and the public. Furthermore, in the Bill, the Minister may declare one organ of state part of another organ, which will allow the executive to decide which documents held by Universities should be considered secret. Furthermore, according to the Bill, the Agency is responsible for ensuring the implementation and protection of information practices in all organs of state, which includes on-site inspections and reviews.

These measures will be patent violations of Universities’ institutional autonomy as a condition for academic freedom. Universities could apply to the Minister for an exemption, which may get them off the hook in terms of having to apply the Act, but the broader problems researchers will face will remain. Universities must not abdicate their role to secure conditions for freedom of expression in society generally. In any event, the Minister has the final say on whether an exemption is granted which, dangerously, makes the exercise of academic freedom subject to the whim of the executive. The bottom line is that the Protection of Information Bill will make the government the arbiter of what can and cannot be researched, which is unconstitutional.

The government cannot be allowed to enjoy the power to block research that may reveal inconvenient truths, as this will lead to irrelevant scholarship that steers away from critical scrutiny of the state. It will lead to a society that is unable to resolve its most pressing problems. Progressive, socially engaged scholars will be the biggest losers, and these are the very scholars who are in short supply in an increasingly timid and inward-focussing South African academy. The Bill represents the single biggest threat to academic freedom since 1994. While the media and civil society have mobilised admirably against the Bill, universities have been largely missing in action. Now is not the time for silence. Professor Duncan is Highway Africa Chair of Media and Information Society, School of Journalism and Media Studies at Rhodes University.