Much of the discussion and questions at the hearings were completely unrelated to the Bill, suggesting that many of the MP’s had no clue about what the Bill intended to do or would in fact achieve. Many other questions and comments displayed a rather Stalinist view of democracy (in other words, it was distinctly anti-democratic). Remember, the Bill would empower heads of government departments and parastatals to classify any document as secret if that document dealt with the “national interest” and would provide for 15 year jail terms for those who leaked or received such classified information.

Some random examples from the minutes would give a taste of the tenor of the “discussion” (I use that word very generously here):

Mr Motitso said that the community where LCDD worked had stated that they did not need the media to protect them, but only the State. Its citizens voted in the government, which had the duty to protect them.

Ms Sunduza asked Ms Moore if she did not think that the Bill would protect the citizens of South Africa.

Ms Mgabadeli  noted that there was a need to protect information in order to address issues of poverty.

Ms Sunduza noted that in every democracy there was an obligation on the State to protect its people. She commented that there were many concerns that the South African media was transgressing personal and private rights in trying to secure interviews or comment. She asked that CCR comment on allegations that had been published about public figures.

The Chairperson noted his concerns, but also indicated that legal opinions were only opinions until the case was proven

Ms Sunduza noted that Government had a responsibility to ensure that human dignity was maintained, which was the principle underpinning confidentiality of medical records, banking records and the like. She also pointed out that certain cultural practices must be respected; for instance, it would be considered wrong to discuss information about an older member of a community.

Read these minutes and weep about the quality of representation in our beloved Parliament. A few random questions do come to mind though.

Why are we paying the huge salaries of 400 MP’s if so many of them are completely unprepared for an important meeting like this? Why did many MP’s, who posed questions at the hearings, seem not to have a clue what the Bill was actually about? Did they come to the meeting only for the free food (which, admittedly, is usually quite nice)?  

Why did so many committee members not understand that the Bill does not deal with the classification of private medical records, the securing of interviews by journalists, the protection of “cultural practices” like “not discussing information about an older member of the community”, or the criticism of public figures?

Surely one does not need to be a rocket scientist (or even a lawyer) to understand that the classification of documents held by the state would not address the concerns raised by many members during the hearings. One only has to read the Bill – once – to understand that. Did the honourable members of Parliament actually READ the Bill before they asked such stupid and irrelevant questions? The minutes suggests that few of them did.

Second, some members of Parliament have a very scary, paternalistic and anti-democratic view of the world and of our constitutional democracy. The view that the government or the state was the only appropriate body to protect citizens (or that citizens were so frail that we had to be protected from hearing upsetting information – say – about a cabinet Minister awarding tenders to himself) is very reminiscent of a certain kind of oppressive regime where the protection of the elite is equated with the protection of the citizens.

According to this view, ordinary citizens need to be protected from information that could upset us because such information could persuade us to vote for another party. And if that was allowed, well, we would have to ban voting and then it would be a bit more difficult to pretend we live in a democracy. 

In a constitutional democracy, a Constitution is put in place exactly to protect us FROM the state and FROM powerful private individuals and institutions who will abuse their power and will infringe on our rights if we give them half a chance. The media is left to do its work to expose the abuses of the politicians and powerful individuals and institutions.  Thinking that the state is the only legitimate body that should be “allowed” to protect citizens, is like thinking only Catholic Priests should be allowed to protect young boys and girls from being sexually molested.

Third, the notion that state secrecy is necessary to address poverty and to help ordinary citizens, is paternalistic and arrogant. It is also utter nonsense. In a democracy, ordinary citizens are in charge while politicians have to serve us, the people. We can demand things from the state and if the state fails us we can vote for another party and put them in government in the hope they will do better. But we can only do that if we have as much information about what the government of the day is up to as we can process with the limited time and capacity to our disposal.

Where the government starts thinking that it has to keep secrets to alleviate poverty, it really is saying that it wants to keep secret the extent of the poverty and the extent to which the government has failed to address that poverty. In such a world we will never know whether or how the state is stealing our money, why it has negligently caused the deaths of many babies in hospitals and how it has exacerbated poverty by using the taxpayers money to enrich themselves and their friends. Secrecy would mean that we might never get to know about tender rigging, failures to supply essential medicines to hospitals, arms deal crooks and other cock-ups about service delivery. Secrecy would make us poorer, not better off.

Lastly, every single reputable legal scholar who has commented on this Bill has indicated that at least some of its clauses will be declared unconstitutional by the Constitutional Court. Yet, the chairperson blithely rejected these opinions because they are only opinions. What is the use of a Parliamentary hearing if the opinions of experts (who are unanimous about the unconstitutionality of several parts of the Bill) can be dismissed as mere opinion and hence can be ignored. It suggests the public hearings is no more than a charade – a bit like the show trials in Stalins Russia. (I guess it is also merely opinion that the earth is round, that the earth revolves around the sun and that Father Christmas does not exist.)

To address poverty, to empower citizens, to make our democracy work, we need MORE information and LESS secrecy. Not the other way around. The fact that many of the ANC members on this committee (were they carefully selected for their subservience and lack of insight?) think otherwise suggests that they themselves think that they are not really fit to rule the country and that they are incapable of addressing the many and serious challenges we face as a nation. (These challenges include addressing widespread poverty and unemployment, the vast discrepancies between rich and poor, a failing education system, a health system that only works for the upper middle classes, and racism and discrimination that remains rife.)

One get’s the impression that this Bill is really an admission by the government of the day that it needs to hide as much of the facts about governance as it can in order to retain support of the voters.  

Surely there are still decent and level-headed members in the ANC who will put a stop to this anti-democratic and dangerous folly within their midst? Surely some ANC members will realise that the Bill will be bad for the ANC as it will diminish trust in the government it runs (and hence in the ANC), will enhance suspicion about its motives and its honesty amongst ordinary voters, will drive dissent further underground or into illegal activity and will sow the seeds of the complete deligitimisation of the ANC in the long run?

Don’t they see that support for this Bill would be as good as an admission of guilt and failure on the part of the ANC, an admission that the party is incapable of properly running the country and thus needs to hide this fact from the voters in order to remain in power (and to continue drawing the perks of government)? Surely some people have read this Bill and know just how weak and incompetent it makes the ANC look and how bad it will be for the ANC in the long run?

First, the ANC’s support amongst colored voters in the Western Cape – even in rural areas – has collapsed dramatically. The ANC has become an African party with very little support amongst members of other race groups. So much for the ANC’s much advertised non-racialism. Whether this has something to do with the embarrassing tantrums and childish rants of a leader like Julius Malema is not clear. What is clear is that the ANC in the Western Cape has completely alienated non-African black voters.

Second, the DA has made modest (but very limited) gains amongst African voters. These gains are more pronounced in small rural towns than in the big cities but remains limited. The DA still has a lot of work to do to convince African voters that it could possibly represent their interests. Even where traditional ANC voters want to cast protest votes they are more likely to cast such votes for independent candidates (or even for Cope) than for the DA candidate.

Speaking of Cope, interestingly, Cope has done surprisingly well in some of the by-elections. This is particularly the case in Cape Town where it gained between 15 and 25% of the vote in constituencies dominated by African voters. This suggests that the voter support for Cope might not have imploded completely despite the dreadful infighting in that party. Maybe something could still be rescued for this sorry bunch of infighters.

Third, some credible independent candidates in certain areas have stolen a large percentage of votes from the ANC while the voter turnout in ANC dominated constituencies where no credible independent candidates were standing, was very low – as low as 25% in some cases. This suggests that the electoral dominance of the ANC – while still very pronounced – is not as solid as it used to be. If credible candidates or parties stood for election, many African voters seem now for the first time prepared to abandon the ANC. This is in line with electoral trends in many other post independent countries, where the party of liberation starts losing its absolute dominance after about 20 years of freedom.

If these patterns are to be repeated in the local government election next year (by no means a forgone conclusion) and if the ANC fails galvanize its traditional supporters to go to the polls, the party will suffer very heavy losses. This will be to the benefit of the DA who might receive almost the same number of votes but a much higher percentage of the votes because of lower turn out.

Lastly, the ANC is continuing to show growth in KwaZulu-Natal at the expense of the hapless IFP. At this rate the IFP would be dead before Mangosuthu Buthelezi is finally disposed of as leader. The IFP is basically dead. The fights about who should succeed Buthelezi as leader is really just a fight about who should oversee the funeral of the IFP.

Of course, these results show clearly why the ANC wants to co-ordinate local government and national elections. In national elections its freedom credentials might still hold sway while elections fought on the failure of local governments (and not on national issues) would make life rather difficult for the ANC – especially where credible alternative candidates come forward.

What if we had not been able to remember how the apartheid state oppressed and humiliated the majority of South Africans? What if we had no clue that some people in South Africa are fabulously rich while many others are desperately poor? What if we were blissfully unaware that Ministers stayed in the lap of luxury and that unscrupulous businessmen were bribing many of our politicians and parastatal bosses – sometimes by paying them rather insultingly small amounts of money or giving them small discounts on ridiculously luxurious cars?

What if we all had long since forgotten how our erstwhile lovers, spouses or work colleagues had humiliated and hurt us with their prejudice, callousness and selfishness? What if we could not remember the day that Bafana Bafana lost 3-0 to Urugay or the day one of our parents died?

Such thoughts quickly lead me to the rather startling realisation that this kind of world would not be a world worth living in. Such a world would not be inhabited by flesh and blood human beings possessing an inherent human dignity – human beings who feel pain and joy and anger, who form opinions and later change them, who take action about what they perceive to be wrong or acquiese in injustice, who hurt others and are hurt in return, who forgive or continue to hate - but rather by dull semi-automatons with few feelings and little agency. 

This insight (in as much as it is an insight at all) lies at the heart of why I believe that the proposed Protection of Information Bill – which I have already written about before - is such a fundamentally flawed and even dangerous concoction. This is also why I profoundly disagree with an article written by one Paul-Michael Keichel and published in today’s Business Day in which he dismisses concerns expressed about this deeply reactionary and oppressive Bill.

Keichel advances several arguments to justify this rather startling endorsement of a Bill that represents such a fundamental attack on the human dignity and freedom of every South African.

First, he argues that no right is absolute and that rights can be limited where ”legitimate state interests are served”, implying that a legitimate state interest would be served by a Bill that allows state officials to prevent the rest of us from ever knowing anything about any document if they believe information in that document may “harm the national interest”. Remember, the national interest is defined so broadly in section 15 of this Bill that it would include such vague and undefinable concepts as “the advancement of the public good”, the “pursuit of justice, democracy, economic growth”, (no mentioning of Miss World and World Peace) ”free trade, a stable monetary system and sound international relations”.

This is of course a ridiculous and legally untenable argument. It fails to take cognisance of the fact that when one decides whether it is justifiable to limit a right, one should do so by asking what is reasonable and justifiable in an OPEN and DEMOCRATIC society based on HUMAN DIGNITY, EQUALITY and FREEDOM. One should also ask whether the law strikes the correct balance between the legitimate state interest and the interest of every individual who is being deprived of the information. One should ask whether the limits placed on that individual’s rights are so severe that it just does not justify the law – even where a legitimate state interest is being served by that law.

Because receiving information – even information that is upsetting, or information that will make us worry or feel fearful about our government – is absolutely essential if we are to live meaningful lives as human beings with an inherent human dignity, limits of the right to receive information should be kept to an absolute minimum. In an open and democratic society based on human dignity, equality and freedom we rather allow more information and more freedom – even if there might be potential harm to the state.

Only where it is absolutely necessary to keep information secret to prevent serious and irreparable damage to the state (not to be confused, of course, with the well-being of the governing party) should secrecy be allowed by the law. Information about troop movements in a time of war, for example, could be kept secret. As would information about arrangements to ensure the personal safety of the President. But information about South Africa’s secret diplomacy in Zimbabwe or information about how the NPA has abused its power in order to protect individuals to further the government’s goal of attracting more foreign investment, would not.

Second, Keichel, accuses those of us who have warned that this Bill presents a fundamental threat to democracy of “quote mining”, referring to sections of the Bill that indicate that the aim of the Bill is benign. The problem is that Keichel fails to understand that these sections are not the operational sections that would do the “legal work” – they are not the sections officials will use to decide whether to classify or not and are therefore pretty useless when one evaluates the possible application and abuse of the provisions of the Bill. 

Section 15, which provides an extraordinarily broad definition of “national interests’ and thus allows for the classification of a vast array of documents, is the section that does most of the legal work, while the clauses Keichel refers to are the nice padding added by the drafters to try and pull the wool over our eyes. But apart from Keichel, few people have been fooled by these rhetorical flourishes aimed at hiding the authoritarian tendencies of the Bill.

Lastly, Keichel has no understanding of how government or the media works and does not understand that the Bill – if passed – will necessarily have a chilling effect on freedom of expression. It is true, as Keichel claims, that journalists will only be able to be prosecuted successfully if they can be shown to possess secret documents validly so classified. But he is wrong to say this means that the provisions pose no threat to media freedom and to the protection of our human dignity.

Because the definition of what would constitute secret documents is so broad, officials will be able to classify millions of state documents perfectly legally and journalists in possession of such documents will then be sent to jail for 15-25 years. This is not the kind of law that can be justified in an open and democratic society – unless one considers North Korea, Pakistan or Saudi Arabia open and democratic societies.

But even where documents are classified wrongly, this will not be of much assistance to freedom of the media. What journalist is going to be brave or stupid enough to hold on to the document in the hope that a court will eventually find that the document was wrongly classified as secret? What happens if you are tried before the wrong judge and you then have to spend 25 years in jail – all for having your byline in the newspaper? It is therefore laughable to claim that these provisions would not prevent journalists from doing their jobs.

No, the Bill as its stands is untenable. If passed it would plunge us into a world where we will be oblivious about much that our government does. And while this might take some stress off the experience of reading the newspaper every morning, it will condemn us to half-lives: sleepwalking through a life that we do not fully inhabit and a world we do not belong in or care about. 

A snap survey conducted at the end of last week of other municipalities hosting World Cup matches revealed that a blanket ban on gatherings is in operation. According to the Rustenberg municipality, ‘gatherings are closed for the World Cup’. The Mbombela municipality was told by the SAPS that they were not going to allow gatherings during the World Cup. The Cape Town City Council claimed that it continues to accept applications for marches, but indicated that it ‘may be a problem’ during the World Cup period. According to the Nelson Mandela Bay and Ethekwini municipalities, the police will not allow gatherings over the World Cup period.

If this is true, it would mean that parts of South Africa are now effectively functioning under a state of emergency in which the right to freedom of assembly and protest have been suspended. This would be both illegal and unconstitutional. Other reports have suggested that such orders were indeed given, but that the police are now backtracking – probably because the police have realised that they are breaking the law and that the order, in fact, constitutes a grave breach of the law and the Constitution.

It is a sad day indeed when the police itself become a threat to our democracy and our rights because Fifa and the government want us all to behave and shut up for the next month and to forget about our democratic rights.

The starting point of the Regulation of Gatherings Act, which was passed in 1993, is that anyone who complies with the requirements set out in the Act is entitled to assemble, to march and to hand over petitions. It is our democratic right and a fundamental aspect of a democracy that we should be able to express our views and grievances in this collective manner. If we want to protest the manner in which Fifa has taken over our country and is stealing our money and robbing us of our dignity, we have every right to do so.

The Act requires organisers of a gathering or march to give notice of the gathering or march at least 7 days before it is to take place. A responsible officer appointed by the Police Commissioner is then required to engage with the organisers in good faith and to consult with them to ensure that a march or a gathering is conducted in a peaceful and orderly fashion.

If the police officer cannot reach an agreement about the way in which the march or gathering should take place, he or she may -  if there are reasonable grounds to do so – impose conditions with regard to the holding of the gathering to ensure the free flow of traffic and to prevent any damage to property or harm to anyone. The Act therefore makes it clear that in ordinary circumstances when one wants to march, demonstrate or gather, permission for the event MUST be given – although reasonable conditions could be imposed in order to protect the interest of the public (the interests of the government of the day or of Fifa would be utterly irrelevant).

There is no provision in the Regulation of Gatherings Act that allows the Police Commissioner or anyone else to issue a blanket ban on the holding of gatherings. There is no provision that states that gatherings can be banned because the police are busy ferrying around Sepp Blatter in a blue light convoy and do not have time to deal with marches and demonstrations. There is no provision in the Act that states gatherings can be banned because the international media is looking and the gathering will give our government or Fifa a bad name or embarrass them.

I have re-read the Act and can confirm that it does not even allow our proxy-government – also known as Fifa – the right to issue such a ban or to request the Police to do so. There are good reasons for this. A blanket ban would constitute a fundamental and unjustifiable infringement on the right  guaranteed in section 17 of the Constitution. This section guarantees for everyone the right “peacefully and unarmed to assemble, to demonstrate, to picket and present petitions”.

It will probably come as a surprise to Sepp Blatter and other leaders of Fifa (who, I read to my utter surprise and shock, has been called a quasi-Mafia for the way in which they run their “business” and take over host countries), that the South African Constitution does not contain any exception for Fifa and hence does not allows it or anyone acting on Fifa’s behalf to issue orders imposing a blanket ban on gatherings and marches. This can only happen if the life of the nation is threatened and Parliament enacts a State of Emergency and even then the emergency can usually only last for 21 days.

It is true that section 5 of the Regulation of Gatherings Act does allow for the prohibition of gatherings and marches but only in very limited circumstances. It can only be done if ”credible information on oath is brought to the attention” of the responsible police officer that:

there is a threat that a proposed gathering will result in serious disruption of vehicular or pedestrian traffic, injury to participants in the gathering or other persons, or extensive damage to property, and that the Police and the traffic officers in question will not be able to contain this threat, he shall forthwith meet or, if time does not allow it, consult with the convener and the authorized member, if possible, and any other person with whom, he believes, he should meet or consult, including the representatives of any police community consultative forum in order to consider the prohibition of the gathering.

But even then, the police officer must first consult with the organisers to find a way of dealing with such concerns. Only where the police officer on reasonable grounds is convinced that no amendment of the conditions for the march would prevent any of the dangers set out above, can a march be banned.

The eyes of the world will be on South Africa over the next month and for those citizens who feel aggrieved about any matter (whether it is about the shocking harassment of Abahlali baseMjondolo members by police and ANC aligned thugs, the destruction of fynbos by golf estate developers, the attack on the Peace Flotilla by the Israeli navy, or the fact that Julius Malema allegedly has R53 million in the bank and allegedly often drinks tea with Minister Simphiwe Nyanda) it is a golden opportunity to have their voices heard in the full glare of the international media spotlight.

The police service – who is supposed to serve the interests of all South Africans – has a duty to facilitate all such peaceful protests. It is thus the duty of police officers to serve the interests of a democratic state – not the interests of the government of the day (who may be led by either the ANC or by Fifa – we are not sure at the moment which one). It may well be that limited policing resources will allow the imposition of more restrictions on marches and demonstrations during the world cup period, but it would not – I repeat NOT – allow any police officer to ban any march that is going to be peaceful and is not going to present a huge disruption to traffic.

So if you have a gripe and you want to demonstrate or march, get those applications in as soon as possible. If the police refuse to grant permission for the march, well, we can make sommer a very big stink.

It is in this context that we have to evaluate the Protection of Information Bill currently being considered by Parliament. It is also against the background of the purging of Thabo Mbeki supporters from the Intelligence Services and the appointment by President Jacob Zuma of some of his most trusted – if not most honest and trustworthy – allies in the security cluster.

This Bill is an unconstitutional and dangerous piece of legislation that is overbroad. It suggests that somewhere, someone really thinks that our media needs to be stopped from reporting on issues of public concern because it can be bad for the government of the day.  In Orwellian fashion section 2 of the Bill claims that it is aimed at promoting “transparency and accountability in governance”. It does nothing of the sort.

The Bill purports to regulate all information – “whether true or false” – that is generated, acquired or received by organs of state or in the possession or control of organs of state. Although the Bill purports to acknowledge the importance of freedom of expression and the need for a free flow of information, these pious platitudes are undermined by various provisions in the Bill that seems draconian in nature. The Bill cautions against using the provisions of the law to protect individuals against allegations of corruption, nepotism and fraud, but the way the Bill is drafted invites the abuse of the law by individuals to protect themselves and others or to protect the governing party.

If passed in its present format it would legalise secrecy and paranoia that would damage our democracy and hamper the media in exposing unlawful and corrupt actions by the powerful and the well-connected. It will also invite the dominant faction in the governing party to abuse the intelligence process and to use the intelligence services (through concocting false reports, fabricating plots and selective leaking of information) against their opponents in the party. It would also make it far easier for government departments and other organs of state from stopping the media from doing its job and from preventing them from exposing corruption, nepotism and maladministration.

The Bill allows for the classification of all “sensitive information” which are protected from disclosure and states that sensitive information is all information that must be “protected from disclosure in order to prevent the national interest of the Republic from being harmed”. And what would this national interest be? Well, section 15 defines it as follows:

15. (1) The national interest of the Republic includes— (a) all matters relating to the advancement of the public good; and (b) all matters relating to the protection and preservation of all things owned or maintained for the public by the State.

2) The national interest is multi-faceted and includes—  (a) the survival and security of the State and the people of South Africa; and (b) the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound international relations.

(3) Matters in the national interest include— (a) security from all forms of crime; (b) protection against attacks or incursions on the Republic or acts of foreign interference; (c) defence and security plans and operations; (d) details of criminal investigations and police and law enforcement methods; (e) significant political and economic relations with international organisations and foreign governments; (f) economic, scientific or technological matters vital to the Republic’s stability, security, integrity and development.

This definition is extraordinarily broad. It suggests that any information in possession of the state that could be said to be related to the advancement of the public good can be kept secret. So, all information on World Cup tenders – surely the World Cup is for the national good? – could be kept secret. As conceivable, could all information dealing with BEE deals (which surely is being implemented for the national good?).

Details of criminal investigations could also be kept secret. This means that if an investigative journalist were to find out that the President of the country has taken a huge bribe from an international arms dealer and if that journalist has come into possession of a copy of an encrypted fax basically proving that the bribe was solicited and the bank account details of the company making the bribe proving that it was paid, that journalist may not be able to publish the story as long as the state can say that the information is in their posession, the matter is being investigated by the police and that all the documents have been classified as secret.

Information about all matters relating to the protection and preservation of all things owned or maintained for the public by the State could also become secret. One would then not be able to expose lax security at our airports or in state hospitals if the DG decides to classify these reports. And a report prepared for the minister of health detailing the theft and destruction of property at state hospitals could also be classified as a state secret.

The proposed Bill also allows for the classification as secret of commercial information held by an organ of state. Section 16 of the Bill states that:

16(2) Commercial information becomes the subject matter of possible protection from disclosure under the following circumstances:

 (a) Commercial information of an organ of state or information which has been given by an ornganisation. firm or individual to an organ of state or an official representing the State, on request or invitation or in terms of a statutory or regulatory provision, the disclosure of which would prejudice the commercial, business, financial or industrial interests of the organ of state, organisation or individual concerned;

(b) information that could endanger the national interest of the Republic.

This means that all information about government tenders could potentially become state secrets and classified as secret information. Any commercial information that could endanger the “national interest” as defined above could be classified as state secrets. Thus any commercial information dealing with “economic growth, free trade, a stable monetary system” could be potentially classified as state secrets. Any Eskom deals with Zimbabwe could become state secrets as could Eskom deals with aluminium smelters.

Of course, with such extraordinary broad powers to classify information as secret, the question of who would be entitled to classify something as a state secret is pivotal. Section 21 states that any head of an organ of state may classify or reclassify information and that a head of an organ of state may delegate in writing authority to classify information to a subordinate staff member.

The Constitution defines an organ of state as any department of state or administration in the national, provincial or local sphere of government; or any other functionary or institution exercising a power or performing a function in terms of the Constitution or a provincial constitution; or exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer.

This means Menzi Simelane would potentially be able to classify everything that he does not want to have reported as state secrets. Perhaps the Vice Chancellors of Universities, the Chairperson of the SABC Board and the Boards of all parastatals will all have the power to classify information as top secret because it would not be in the national interest to reveal it to ordinary people.

After all, we are only mere citizens and we must be protected from hearing any information that could make us depressed or could make us lose trust in the government of the day. It would surely not be in the national interest for ordinary citizens to start thinking that their leaders are corrupt and selfish sods who should not be trusted under any circumstances. So better to hide these facts from voters who might get upset and vote for someone else.

One can ask for information to be declassified (if one knows that it exists of course) but only those with deep pockets and lots of patience will be able to go down that rout and eventually to challenge the classification in court.

Meanwhile the orgy of classifying information as state secrets will continue and we would be deprived of vital information needed to fulfil our rights and duties as active citizens. Journalists will be in a rather awkward position because the Bill imposes penalties from between 5-25 years for divulging state secrets or for even receiving any classified information. So if they do challenge the classification of information, the first thing the state will ask is: how do you know this information exist at all? Do you have it in your possession?

Secrecy is the enemy of democracy, accountability and the fight against corruption and nepotism. This Bill is so broadly drawn that if it is passed it will be abused. We already know that the state unlawfully ignores thousands of access to information requests every year as most state officials are either too lazy to attend to such requests or they believe that citizens do not have a right to information held by the state. With this powerful tool in their hands, heads of government departments and other organs of state will now be able to put formidable legal obstacles in the way of anyone who wishes to expose incompetence, corruption and criminality.

The Bill represents a fundamental attack on our democracy. It is clearly overbroad and hence infringes on the right to receive information as well as the right to freedom of expression. If adopted it will not pass constitutional muster – the definitions of information that could be kept secret and the broad powers given to organs of state to decide for themselves what information can be classified is far too broad and open-ended to be justifiable in terms of the limitation clause. I’ll bet some serious money that if this Bill is passed in its present form, the Constitutional Court will declare it invalid.

But the mere fact that this piece of apartheid-style legislation has been proposed says something about some of the people working in President Jacob Zuma’s security establishment. It makes one wonder whether these people are tapping our phones and intercepting our email. It is all very scary indeed.

The most interesting results came out of Cape Town in a ward which encompasses the traditional “African” suburb of Gugulethu and the traditional “coloured” area of Heideveld. The DA won 60% of the vote in this election compared to the 38% of the ANC. In the previous local government election the ANC won 53% of the vote and the DA 26%. There was therefore a huge swing towards the DA in the by-election.

There seems to be at least three reasons for this dramatic swing towards the DA.

First, the ANC’s support amongst “coloured” voters in the constituency collapsed dramatically. In the local government election the ANC attracted about 15% of the vote in these traditional working class communities. This collapsed to below 1% at some voting stations this week. The racial nationalism of Julius Malema and Jacob Zuma obviously holds no attraction for coloured voters in the Western Cape.

Second, the Independent Democrats (ID) did not contest the election and its voters did not stay home but voted for the DA. One can probably assume that this means support for the ID is collapsing and that its voters are now supporting the DA. Based on the results of this by-election the DA seems  to have consolidated its support amongst working class coloured people in Cape Town.

Third, many people who voted for the ANC in the previous local government election, decided not to vote at all. At the two Gugulethu voting stations the ANC obtained 3244 votes in the previous local government election. This week only 2214 people voted for the ANC at these two stations. One third of the voters in Gugulethu who voted for the ANC in the previous local government election therefore decided to stay at home.

What did not happen, was a significant surge in support for the DA amongst voters in Gugulethu, where the party made only very small gains. In the previous local government election the DA polled 22 votes – less than 1% – at these polling stations. In the by-election this week it polled 79 votes, which is about 3 % of the votes cast at these polling stations.

This means that the party has not yet managed to convince significant numbers of African voters in Cape Town to vote for it. Faced with a choice between the DA and the ANC, many African voters simply stayed at home. Helen Zille has a lot of work to do to convince “African” voters that the DA is not fundamentally opposed to their interests.

What does this mean for the local government elections next year? Well, it might mean very little, as by-elections are notoriously bad indicators of how voters would vote during an election fought nationally. The Western Cape is also unique in other ways: Support for ousted President Thabo Mbeki is particularly strong here and distrust of Jacob Zuma probably higher than elsewhere. So it would be premature to extrapolate these results in Cape Town and to assume they would be reflected nationally.

But the by-election results this week in other parts of the country do suggest that the ANC is in some trouble and that many of its traditional voters are disillusioned with them and are prepared to demonstrate this. In Groblersdal the ANC candidate lost to an independent candidate who polled more than 50% of the vote. In the previous election the ANC candidate had polled almost 60% of the vote.

In Greater Tubatse [Burgersfort/Ohrigstad/Eastern Tubatse] the ANC candidate won with 65% of the vote but the Pan Africanist Congress of Azania candidate obtained almost 30% of the vote. In the previous local government election the ANC had polled almost 90% of the votes in that district. Only in KwaZulu/Natal is the ANC’s vote holding up well.

If these trends continue and many voters who voted for the ANC either stay at home or cast a protest vote for one of the smaller parties, the ANC could face massive losses at the next local government election in 2011. Although it would probably retain control of most metro councils, it could become a close run affair in places like Pretoria and Johannesburg.

These results suggest that the corruption, arrogance, nepotism and mismanagement that is rife at local government level in Municipalities controlled by the ANC is finally beginning to affect the voting behaviour of the voters who traditionally voted for the ANC.  However, because the official opposition is still perceived as a “white” party who may not represent the interest of the African majority, smaller parties may benefit disproportionately from a protest vote cast by “African” voters.

If the DA slightly improves its performance along with improved performances for smaller parties like the PAC, and if the ANC fails to convince voters to come to the polls and to vote for it (even after spending obscene amounts of our money), 2011 might just be the year in which the ANC gets the wake-up call it so badly needs. That would be a good thing for democracy and for South Africa.

But the ANC has made so much money through crooked tenders that it might yet be able to buy off the electorate this one more time. Only time will tell. 

The proposed amendment of section 176 will extend the term for Constitutional Court judges who will be able to serve until they reach the age of 70 – regardless of how long they had already served on the Constitutional Court. If passed, this will mean that Chief Justice Sandile Ngcobo appointed by Jacob Zuma last year – who currently will have to retire in 2012 – would be able to serve as Chief Justice until 2023 (along with judges Cameron and Froneman who would then also have to retire in 2023).

Deputy Chief Justice Dikgang Moseneke, on the other hand, will then have to retire in 2017 – long before the end of the term of the current Chief Justice. The proposals would therefore make it impossible for him ever to become Chief Justice. Newly  appointed Judges Chris Jafta and Bess Nkabinde will then serve until 2029, while Justice Mogoeng Mogoeng, a lay-preacher, will serve until 2030.

The question that comes to this suspicious mind is: why has Minister Jeff Radebe made this proposal now? Did he consult the Chief Justice and the other judges of the Constitutional Court? Why wait with the proposal until after four of the most compassionate and progressive judges have retired from the Constitutional Court and four new judges were appointed by the very guy who has had several run ins with the courts because he took money from a crook and then did favours for that crook?

I for one, smell a rat.

When the Constitution was drafted there were long debates about the term to be served by judges of the Constitutional Court. It was pointed out then that South Africa should avoid the American example, where Supreme Court justices serve for life or until they fall over or retire. Sometimes they serve for 30 years or more, thus ensuring some influence for the President who appointed them many years after that President had retired or even died.

Because judges of the South African Constitutional Court have enormous powers and because the exercise of these powers have political ramifications, it was felt that the Constitutional Court judges – unlike High Court and Supreme Court of Appeal judges – should serve a fixed term of no more than 15 years. In this the drafters of our Constitution followed the wise model of the German Constitution and the Constitutions of many other modern democracies.

The reasoning was simple and clear. Judges of the Constitutional Court exercise power that will have strong political ramifications. They are not in effect appointed by the Judicial Services Commission (JSC) in the same manner as the judges of High Courts but are selected by the President from a list prepared by the JSC.  The President also appoints the Chief Justice and Deputy Chief Justice without having to follow the advice of the JSC.

By giving the President a decisive role in the appointment of the judges of our highest court, the Constitution recognises the fact that this court plays a more political role than the other courts. It can declare invalid the actions of the President, has to confirm the unconstitutionality of legislative provisions and, heaven help us ever having to go there, would be able to rule on the validity of an election result.

A relatively regular turnover of judges of the Constitutional Court would therefore ensure that a new President would have some say in the appointment of the Constitutional Court judges as the 12-15 year terms of Constitutional Court judges come to an end and they have to be replaced. This would ensure that the leader of a defeated political party would not be able to exert undue influence on our legal  system by appointing Constitutional Court judges that will serve perhaps far into the future. One would not want judges to serve for 30 or 40 years when that political party whose leader had appointed them had already faded into obscurity or had even disappeared (as the National Party has indeed done).

Imagine these proposals were in place in 1990 and FW de Klerk had appointed 40 year old judges to the Constitutional Court who could then serve until they were 70. That would have meant that the Constitutional Court would have been packed with people appointed by De Klerk and would have been able to serve until 2020 – long after the demise of the National Party. If de Klerk had used his power in a Machiavellian manner to ensure the appointment of judges that were in effect pro-National Party, the Constitutional Court would have been able to thwart much of the ANC’s transformation programme.

Some High Court judges who currently still serve on our courts were appointed before the end of apartheid, but their decisions can always be appealed to the Constitutional Court. Imagine pro-apartheid judges were allowed tos erve on the Constitutional Court for the next 30 years? How undemocratic would that be?

This would have been bad for democracy, bad for the legitimacy of the Courts and bad for the Constitutional project as a whole. It would also have invested the appointment of Constitutional Court judges with so much more significance, as a President would be far more likely to choose a mediocre but reliable party hack for a position on the Court if he or she knew that the appointment would last for 30 or 40 years and might still help to thwart the political programme of a party who defeated the President’s party at the ballot box.

Regardless of how one feels about the judges presently serving on the Constitutional Court – and in my humble opinion there are several brilliant judges serving on that court at the moment, along with a few other judges who one would not be able to  describe as intellectual giants – this proposal seems wrong and dangerous.

It upsets the careful balance devised by the constitutional negotiators which recognised the political role played by the Constitutional Court, but limited the term of the judges serving on this court to ensure that one party in power did not pack the court with its supporters to rule South Africa from the grave – so to speak.

In the absence of cogent and plausible arguments for this amendment, it would not be unwise to suspect that there is some inherently undemocratic about this move and that malicious intent might be behind these proposals. Given the fact that these proposals are brough to you curtesy of the same people who engineered the appointment of that ethically challenged guy called Menzi Simelane as head of the NPA, I am deeply suspicious about the motive behind this proposal. Surely, it will be seen by many people as an attempt by some in the ANC to help entrech their power, if not until Jesus comes then at least for the next 30 years.

Just in the last day we heard that 6 babies died needlessly in a hospital in Gauteng because of overcrowding (and perhaps also because of callousness), that millions of people do not have formal houses to live in and that the President is shocked about their living conditions (he really should get out more),and that the Police is reported to have spent R498 million in 2006 to build 7 new police stations and refurbish 3 and spent R1.1 billion last year to construct 2 stations and upgrade 2?

Surely name changes are not that big a deal? Besides, some names need to be changed because their very existence is an affront to the majority of the people of South Africa – including to this blogger.

Every morning I drive past Oswald Pirow Rylaan on my way to work. This is what Wikipedia has to say about Mr Pirow:

Pirow became an admirer of Adolf Hitler after meeting him in 1933. He toured Europe in 1938 and claimed to offer Hitler a free role in Eastern Europe in return for allowing the Jews to leave Germany. During this tour he also met Benito Mussolini, António de Oliveira Salazar and Francisco Franco and became convinced that a European war was imminent, with Nazi victory assured.

Pirow supported Hertzog’s calls for neutrality when war did arrive and followed his leader in to the new Herenigde Nasionale Party (HNP). By September 1940 he had launched his own New Order group within the HNP, backing a Nazi style dictatorship. This group took its name from his 1940 New Order in South Africa pamphlet in which he embraced the ideology. The pamphlet ran through seven editions in its first year of existence. The group finally broke from the HNP altogether in 1942 after both Daniel François Malan and Johannes Gerhardus Strijdom openly rejected the Nazis. Pirow did not run in the 1943 election although a number of New Order candidates did and they were all heavily defeated. Although Pirow continued to publish a newsletter until 1958 his political career was effectively over, leaving him to return to legal practice.

How can it be that the name of this street has not been changed – sixteen years after the end of apartheid? Surely it is s scandal of immense proportions?

The DA run City of Cape Town started a process to change such offensive names (the previous ANC administration having been too busy looking after which tenders to give to whom of their pals) and appointed a panel of experts to consider suggestions from the public about this. The panel carefully selected those names that are really offensive and made wonderful proposals to change these names. The new names proposed by this panel were both wise and sensitive, and included the names of Afrikaans poet Ingrid Jonker who was quoted by Nelson Mandela in his first speech to Parliament, the late heart transplant pioneer and Viagra user Chris Barnard and struggle heroes like Ashley Kriel.

Yet, three years later, I still drive by Oswald Pirow Rylaan and Barry Hertzog Boulevard – both monuments to racial superiority and racial oppression. Why? Perhaps because some fellow South Africans do not want to let go of the past, a past that is well worth letting go of? Or is it because the DA City Council is too scared of the racists in its midst or too unprincipled to do the right thing and implement these name changes?

It is an affront to every Capetonian who embraces the values enshrined in our Constitution and the democratic order every day to have to be confronted with the celebration of Nazi’s and racists in this way. Yet nothing is being done. The issue cannot be money as only a handful of name changes were proposed by the panel of experts. Besides, in preparation for the World Cup, many road signs were replaced or upgraded to comply with the dictates of Fifa. One could probably implement all the name changes proposed by the panel without spending half the money used to upgrade one police station or pay for one Departmental Christmas party.

I was reminded of all this when I saw that the ANC and the FF Plus have agreed that the difficult question of geographic name changes should proceed in a manner that reconciles histories with present realities. Following a rare meeting with FF Plus leader Pieter Mulder yesterday, ANC secretary-general Gwede Mantashe said it was important to “allow the two histories to talk to each other”. It was thus crucial “not to do name changes willy-nilly,” he said.

Mantashe’s suggestion seems sensible enough.

I am not one who believes we should erase all traces of the past (as if one can do that). Our various histories and cultures should be allowed to talk to one another and there is even a place somewhere for statues of the colonialists and racists. It is therefore perhaps not necessary to bulldoze the Roads Memorial on the slopes of Table Mountain – despite the fact that it celebrates the life of that old racist imperialist Cecil John Rhodes (whose reputation has been shamefully resuscitated with the association of his name with that of Nelson Mandela).

I have previously proposed – only half in jest – that we should remove most of the memorials and statues commemorating and celebrating colonial and apartheid era “heroes” and place them in an apartheid graveyard somewhere. There could be a neatly kept garden and informative plagues explaining the roles each of these men (because they were invariably all men) played in our history.

I am sure some space could be found at the Voortrekker Monument to house all these reminders of our oppressive past. Then schoolchildren could be taken on educational tours to this site to remind them of our history. One could have a Woodstock style rock concert there every year. I can see the dagga smokers and hippy types lounging about between the statues while the Parlotones and Freshly ground entertain the crowds. Or perhaps one can have an annual outdoor rave for youngsters amongst the graves of these apartheid heroes – all just to show that we do not take these figures too seriously anymore.

Then we can turn our attention to the real problems facing South Africa and can hold our government to account when it wastes our money or betrays the poor without the government being able to point to the past and to blame those whites who still yearn for apartheid for their own failings. I for one, would not mind living in such a country where the past stops being an excuse to justify arrogance and greed and becomes merely an important reminder of what kind of country we do NOT want to live in.

The New York Times this week have had at least two stories each day exploring Kagan’s biography, the response of left-wing Democrats to the nomination, Kagan’s own view about the confirmation process, analysis by legal academics about her judicial philosophy, and even a summary of her statements on important issue with links to the relevant documents.

Last year President Jacob Zuma appointed four new members to our own Constitutional Court after a long process which started with the nomination of more than 20 candidates who were later interviewed by the Judicial Services Commission (JSC). The level of reporting and debate about the various nominees and those eventually chosen was, to say the least, dismal.

One may argue that the media has limited resources and that it could not report extensively on all the nominees. But surely one would have thought that it would at least have tried to find out a bit more about the four candidates eventually chosen to serve on our highest court. These judges have joined the third branch of government – the judiciary – and will wield immense power, yet we know hardly anything about them.

While we know something about President Jacob Zuma and his cabinet and about the leaders in parliament because the media at least sometimes report on their activities and beliefs, we know virtually nothing about the judicial philosophies (if any) of the four newly appointed judges to the Constitutional Court. If one only reads the newspapers and listen to the radio or watches television one might not know whether the appointees are proto-facists or whether they may be fantastically progressive people with a deep concern for the marginalised and vulnerable.

The media focused rather obsessively on the question of whether Judge President John Hlophe would be appointed to the Constitutional Court. There was one good article by my colleagues at the Democratic Governance Rights Units about the interviewing process, but apart from that, one waited in vain for intelligent and informed analysis of what was going on, who was appointed and what it meant for the direction the court might take in the years to come. Sadly, the media failed dismally to inform the public about four people who may very well play a decisive role in declaring invalid laws enacted by a democratically elected Parliament and the actions of our President and his cabinet.

This failure by the media to report intelligently and in an informed manner about the members of the highest court (and also about the decision of the Constitutional Court) is depressing to say the least. We all bemoan the low level of debate and political discourse in our country and point fingers at Julius Malema. Yet, the very media who is supposed to act as a main player in our democracy and has a duty to keep us informed to allow us to make sane and wise decisions, fail us dismally.

In stead of going beyond the headlines to analyse what is happening, we get reports focusing on conflicts and the superficial aspects of the personalities involved. How can we live as responsible and active citizens if we really have no clue what is going on in our country? I probably know more about Najwa Petersen’s murder trial and the kind of clothes she wore to court than I know about any of the four new appointees to the Constitutional Court – and I don’t even read The Voice and Die Son.

Some of this has to do with the rather low standard of journalism in our country. Some also has to do with the fact that the media has not adapted to the fact that we now live in a constitutional democracy in which the Constitutional Court has become a major player whose actions may well have serious political ramifications. While the media still focuses on what happens in parliament or in the Presidency – as if we still live in a system with Parliamentary sovereignty – a major part of what happens in our country and what affects the politics of our country goes unreported.

No wonder the Julius Malema’s of our world thrive.

Who knows where the truth lies.

More interesting though is the reasons given for the dropping of some of the more serious charges against Malema. It has been stated that these charges were prepared by Gwede Mantashe, who was not authorized to do so as he was not the person actually charging Malema. The charges were therefore procedurally deficient.

Despite this, Malema was eventually found guilty of contravening Rule 25.5.(i) of the Constitution of the African National Congress “by behaving in such a way as to provoke serious divisions or a break-down of unity in the organization”, in that:

At the ANC Youth League Limpopo Provincial Congress, on Sunday, April 11, 2010, when addressing the media, you issued the utterance that, “Even (former) President Thabo Mbeki, when he differed with the Youth League, and the Youth League had taken firm radical positions against him, he never did that” thereby implying that the ANC Youth League, of which you are the President, has taken a position against the President of the ANC.

Whether this outcome can be squared with rule 25.2 of the ANC Constitution is debatable. This rule states that disciplinary charges shall not “be used as a means of stifling debate or denying members their basic democratic rights”. Although I am not a great fan of Juju’s style of politics, it is difficult not to conclude that his offending statement was basically true and that he had a democratic right to make it. The finding of the National Disciplinary Committee (NDC) suggests that an ANC member who criticizes a fellow ANC member – even if this criticism is based on fact – may face disciplinary charges, something that seems rather undemocratic to me.

Surely, if this approach were to be strictly applied, it would stifle democratic debate within the ANC and would severely limit the freedom of expression enjoyed by ANC members. If an ANC member criticized one of his comrades because that comrade had been found guilty of corruption, say, disciplinary charges could be instituted against him or her for sowing division within the ANC. This would leave good members in the ANC who spoke out against the wrongdoing of comrades vulnerable and would make it rather difficult to raise questions about the conduct of fellow ANC members – even if this criticism is based on proven facts.

This seems rather counter-productive and even dangerous. Surely we need more ANC members exposing and criticizing their comrades for doing the wrong thing – not less of it? A culture of corruption and lawlessness flourishes where good people fear to speak out and to criticize their comrades.

I suspect the ANC Youth League will pursue this line of reasoning in its attempt to have the findings of the NDC overturned by the National Executive Committee (NEC) of the ANC.

According to the regulations attached to the ANC Constitution, disciplinary charges can be brought by “any organ or official of the ANC at Branch, Regional, Provincial or National level”. The National Disciplinary Committee is also empowered to hear and decide cases “referred to it by the ANC National Officials, NWC, or the NEC or of very serious violations or offences on its own initiative”. A charge must be prepared on behalf of the organ or officials of the ANC instituting the disciplinary proceedings.

This suggests that Mantashe should not have prepared the charges, but that these should rather have been prepared by the person actually prosecuting the case on his behalf. This is, as far as I can tell, why the three other charges against Malema were thrown out. However, the NDC itself  is empowered to hear cases “on its own initiative” where the charges are serious. This the NDC did, choosing the one charge mentioned above.

This suggests the NDC did not feel that the other three charges regarding Malema’s visit to Zimbabwe, comments about Eugene Terreblanche, and the attack on a British journalist were “serious”. The NDC apparently believed it was far more serious for Malema to have criticized the President of the ANC than to have interfered with South Africa’s foreign policy, to have ignored ANC instructions not to comment on the death of Terreblanche in order to calm the nerves of the whiteys, and to have displayed a rather shocking lack of respect for media freedom.

To my mind the whole disciplinary process seems like a side show as it skirts the real problem with Malema. Newspaper reports suggest that Malema has R53 million in the bank, that he is a major shareholder in companies that had secured tenders from various municipalities in Limpopo despite the fact that the companies were not eligible for tenders because they had no tax compliant certificates, and that the companies did shoddy work. If any of this is true, Malema is the quintessential tenderpreneur, milking the state dry for his own benefit – to the detriment of the people whom the ANC was elected to serve.

If these allegations are true – and it is difficult not to suspect that there is a grain of truth to them, given the confusing and contradictory explanations and justifications offered by Malema and his failure to sue the newspapers for publishing these defamatory claims – it would suggest that Malema is a thoroughly corrupt man who is using and abusing his position in the ANC for personal gain.

Surely, if the ANC wants to retain the trust of the majority of South African voters, it needs to deal with the growing perception that leaders like Malema are using their power and influence to get rich while service delivery is fatally compromised. Is this perception – now widely shared by people of different political persuasions and races – not far more detrimental to the well-being of the ANC and the people of South Africa than the mild criticism Malema leveled against our President?

Of course the chattering classes are far less dependent for their survival on the efficient and honest functioning of the state than the poor and marginalized in our society. The chattering classes hire private security companies to protect them, hunker down in gated communities where services are delivered by the body corporate, and eye the opportunities to enrich themselves through legal and illegal means, while those who are absolutely dependent on the state are left to their own devices. That is why members of the chattering classes get more worked up when Malema sings “Kill the Boer” or when he jets off to Zimbabwe, than about the allegations that poor black people in Limpopo had been fleeced by Malema through tender scams.

What we all desperately need – whether we are ANC supporters or not – is for investigative journalists and honest ANC members to expose any corrupt practices linked to Malema or any other ANC leaders. If alleged corruption by ANC politicians or their enablers in the private sector is not mercilessly exposed and stopped, the legitimacy of the state itself will be endangered. And once the state loses any legitimacy, it would lose the ability to keep the fragile peace in South Africa, a peace that is required for the chattering classes to continue enjoying the benefits of their wealth and privilege.

Sadly, the outcome of the disciplinary case will do nothing to address these real problems.

PS: What we also need is a police service and a prosecuting authority that will go after those suspected of corruption, whether they are in government or the private sector. That is why the appointment of Menzi Simelane seems like such a disaster to me.