1 December, 2011

By Nizar Manek

South Africa’s ruling party State Security Minister Siyabonga Cwele on 16 November claimed “foreign spies” have been paying civil society groups to oppose the African National Congress’ (ANC) new Protection of State Information Bill.

“You won’t find foreign spies openly marching in the streets of Cape Town, complaining that we are removing their easy access to our sensitive information, but they will fund their local proxies to defend their illegality”, Cwele said in a parliamentary debate, as the Democratic Alliance (DA) opposition stepped up its efforts at filibuster.

That was the opening gambit – soon to coincide with Black Tuesday‘s 229 ANC majority vote in favour of the controversial bill, which its civil society detractors have labelled the ‘secrecy bill’. The bill, which provides a criminal prohibition on the press from publishing classified documents a judge might otherwise deem in the public interest together with prison sentences for whistleblowers, now moves to the National Council of Provinces – the second chamber of parliament – for concurrence. President Jacob Zuma, who would thereafter sign the bill into law, also seems to be ‘cleaning out’ security officers suspected of opposing his second term, according to a report published by Africa Confidential: ‘Some say Zuma is getting ready to deploy the security services against his opponents’.

Neither process after the National Assembly vote is expected to result in any changes to the bill, which casts a dark shadow over the boundaries of the free flow of information. Expected to become law early next year, it could be used to obstruct evidence being presented to an approaching Commission of Inquiry into a late 1990s arms deal corruption case in which Zuma is implicated. Any ‘organ of state’ could classify any document, with the state having wide discretion to punish offences by imprisonment ‘for a period not less than 15 years but not exceeding 25 years’.

Zuma stood by Cwele after calls for his resignation after the conviction of his wife for drug trafficking this May, and appointed Mark Hully, a specialist in criminal law, his personal legal advisor this month, amid DA calls that the Law Society investigate Hully for unprofessional conduct. Zuma’s allies in the police’s Crime Intelligence Services allegedly leaked to Hully tape-recorded conversations of anti-corruption officials discussing a long-running arms case that accuses Zuma and others of kickbacks. The case was dropped shortly before he became president.

Though Cwele’s convulsions were soon tempered by murmurs that the ANC would come to a “meeting point” with the press, he offered a curious assessment of the public interest argument: “We have looked at international best practice and there is no country which practices such reckless practice”. ANC MP Llewellyn Landers’ reason why there should be no public interest clause is no less perplexing: “it would do irrevocable harm to the state and the people of South Africa if a court should find that a whistleblower was found to have given information not out of public interest but out of maliciousness”.

That is the outcome of a process that saw the ANC postpone its planned 20 September vote on the bill: government corruption shielded by secrecy, and concentration of information and power in the hands of a leadership that seeks to perpetuate itself. It also includes the insertion of a provision that seeks to empower the bill to override the Promotion of Access to Information Act (PAIA), against a recent surge in advancement of access to information on the Continent. PAIA has been a channel of information journalists were still learning to use to its full potential, but it will now be obstructed as circumstances for press freedom revert back to the apartheid regime.

Access to records could be refused on the basis of their status as a classified document. This ‘fundamentally [restricts] the constitutional right of access to information in South Africa’, according to the South African History Archive. The Bill also provides an indefinite extension for the time the government may respond to requests for access to ‘classified’ information: ‘PAIA requires requests for access to information from the state to be responded to within 30 days. In contrast, the Secrecy Bill merely requires that requests for access to classified records are responded to within a ‘reasonable’ time (except where the release of the record clearly satisfies the public interest override), leaving the period open to subjective interpretation by government officials’.

With the postponement of the vote, ANC chief whip Mathole Mtoshekga said the bill would be finalised at the end of the year – ostensibly to allow wider consultation in the drafting stages. The ANC subsequently established its own private committee to gather submissions, in what has been argued as an abuse of parliamentary procedures. It also dissolved the ad hoc parliamentary committee on the bill, and established an ‘information bill unit’ – an attempt to restrict participation in the submissions process. The ANC did not want “only to listen to the views of well-financed lobby groups”.

South Africa is currently among only two out of ten African countries with access to information legislation to yield ‘any useful information’, according to an Associated Press investigation into whether countries with such laws follow them. With the PAIA having been in force for nine years, there have been prominent exposures of fraud in public service; the Travelgate and Oilgate scandals, for instance. The Mail&Guardian gives an outline of some of the stories that would not have seen the light of day under a post-secrecy bill regime. A public interest clause could, by contrast, provide an outline for carefully defined grounds for disclosure of certain categories of information.

The clash could reach the Constitutional Court, the country’s highest court, with the South African National Editors’ Forum already having threatened a constitutional challenge if the public interest clause were left out of the bill, and South Africa’s largest trade union movement having vowed the same. The African Christian Democratic Party has said it will petition President Zuma to refer the bill for constitutional review, and the Democratic Alliance that it will take legal advice on whether to petition the president.

It only adds to South Africa’s woes that the bill, which may indeed have little chance of surviving a constitutional challenge from the highest court, that the ANC chief whip, Mathole Mtoshekga is careless enough to attack the very existence of the Constitutional Court. Striking down the bill once passed would be a “gross violation” of the separation of powers doctrine, Mtoshekga said on South African television: “If people are defeated in a political arena, they want to substitute the will of the people with the will of the judges. Then we must redefine our democracy and how we want to manage our country”.

All of this sadly comes from the ANC, the party of Nelson Mandela that deems itself a force of liberation in the post-apartheid era. The bill should shake the ANC’s traditional support base. As T.S. Eliot wrote in the opening stanza of Choruses from the Rock:

‘Where is the wisdom we have lost in knowledge?

Where is the knowledge we have lost in information?’

Article courtesy of http://www.theafricareport.com/index.php/news-analysis/sa-secrecy-bill-cwele%E2%80%99s-convulsions-and-constitutional-challenge-50176598.html, retrieved on 5 December, 2011.