Does government have the right to keep info from you to stop you from ‘panicking’?

Let’s get one thing straight. The lockdown has certainly been effective in minimising Covid-19 transmission. Unfortunately for many who would see this as justification for the lockdown measures, that’s where I get off their bus. I wonder what their solution to end poverty would be if they were armed and released into poor communities and their only criterion is “will it be effective?”

Fortunately, armchair commentators are not tasked with policy creation, but do you know who is? That’s correct! The government!

And do you know who chooses the government? Indeed, it is us! And do you know how we choose the government? Well, who am I to tell you which metrics to apply to your political choices, but I would imagine judging them on their actions based on the knowledge available would be important, so, having access to knowledge that is available is pretty important.

But government hiding information is nothing new. In fact, in many instances, it may even be compelled; military secrets, diplomatic cables and sensitive information generally don’t see the light of a public day out. Similarly, government has certain obligations to fulfil and if avoiding panic is one of them and the way to do that is to hide panic-inducing information, as paternalistic as that may be, does the law allow them to?

Let’s start with whether there is an obligation to avoid a panic. Easy. No! There is no constitutional imperative nor legislative compulsion to “avoid panic”. Perhaps one could argue that avoiding panic is a duty interpreted out of various elements like Section 83(c), which compels the president to “promote the unity of the nation and that which will advance the republic” … whatever that means.

But again, just doing anything to give effect to a particular end does not in itself justify that anything. So even if the executive has an implied obligation to avoid panic, would they be allowed to keep secrets from the public for that purpose?

In recent history, South Africa has been good at hiding secrets but equally good in creating the environment under which people could access those secrets. This was and is done through the Promotion of Access to Information Act, which offers a process with limitations and exclusions so the parties can usually negotiate what is important to keep secret and what is not. While the Act does expressly exclude records of the Cabinet and its committees (S12) as well as any disclosure that may cause “prejudice to the security of the republic”(S41), it did give rise to a great case when the Right2Know campaign took on the minister of police to release the list of national key points back during the days when one could be arrested for taking photographs of Nkandla.

Aside from Judge Sutherland’s legendary “…declined to disclose a fact to a questioner, because were he to do so, he would have to kill him” James Bond reference, the court maintained two principles: that in the absence of evidence of the harm, the harm alleged cannot be considered and that public interest is a key weighting when the result affects the public. In other words, if you claim there is harm, you need to prove it and if the information is valuable to the public to make informed decisions, then you should lean towards releasing it. In that case, because one could be arrested for accessing a national key point, one would need to know what the national key points are.

Could the same argument be levelled at requiring knowledge of what is justifying the lockdown if the lockdown is keeping us from accessing greater rights than taking photos of Nkandla? I wouldn’t think it is a stretch to say that the same argument can be applied.

Even if the government were to concede that it has lost control and that it does not trust its people to act rationally given the truth … which is essentially what the argument for avoiding panic boils down to … it is left with one small problem. It would need to prove that harm … which I’m not convinced they could do.

In short, while there are some justifications in legislation and morality that would allow the state to hide information, they shouldn’t make a meal out of it because the cumbersome burden to prove that it’s justified may land them with egg on their faces.

Oh and also let’s not forget that little bit of the Bill of Rights next to number 32 which reads that every person has a right of access to “any information held by the state”.

Richard Anthony Chemaly entertainment attorney, radio broadcaster and lecturer of communication ethics.

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