media

Secrecy Bill less about media freedom, more about national security state

Jan 31st, 2012

Not enough South Africans understand that the Protection of State Information Bill (also popularly known as the Secrecy Bill) now being considered by the National Council of Provinces (NCOP) is not primarily aimed at muzzling the media. Although in its current form the Bill will have a chilling effect on the media and would probably stop many whistleblowers from leaking sensitive or embarrassing information to the media, the Bill is primarily aimed at shielding the various intelligence agencies and structures from too much scrutiny and at ensuring that the ordinary constitutional checks and balances that apply to other organs of state that exercise public power would not apply to the intelligence services.

Because we get most of our information about the Secrecy Bill from the media, it is not surprising that members of the media have focused on their own short-term interests and have argued (not entirely correctly) that the Bill was primarily aimed at muzzling the press and at hiding corruption. But this view fails to consider the broader context within which the Secrecy Bill is being discussed.

One must recall that this Bill originated with (and was drafted by) members of the intelligence services and is primarily aimed at creating a legal regime that would provide a veil of secrecy behind which our spies would be able to hide. As long as our intelligence services do what they are constitutionally mandated to do and do not abuse their powers, the Bill will, in my opinion, not have as dramatic an effect on the media landscape in South Africa as some commentators have argued.

(Of course, if the Minister of State Security misused this Bill and extended the power of classification to many of the more than 1000 organs of state — as he is empowered to do in terms of the current draft — the Bill may well be used to hide corruption and maladministration on a vast scale, but that was not the primary objective of the Bill.)

Section 199 of the Constitution contains several provisions that signal an understanding on the part of the drafters of the Constitution that security services could easily be misused by the government of the day. Thus it states that the security services must act, and must teach and require their members to act, in accordance with the constitution and the law; that national security must be pursued in compliance with the law, including international law; and that no member of any security service may obey a manifestly illegal order. The security services are obliged to respect constitutional rights and they are prohibited from prejudicing or furthering the interests of political parties.

Dr Laurie Nathan, who has written extensively on the South African Intelligence Services and was also a member of the Ministerial Review Commission on Intelligence (along with Joe Matthews, a former Deputy Minister of Safety and Security, who chaired the body, and Dr Frene Ginwala, the first Speaker of our democratic Parliament), has warned that:

There is ample historical evidence that politicians and intelligence officers can abuse these powers [of intelligence agencies] to infringe rights without good cause, interfere in politics and favour or prejudice a political party or leader, thereby subverting democracy. They can intimidate the government’s opponents, create a climate of fear and manipulate intelligence in order to influence state decision-making and public opinion. Given these dangers, democratic societies are confronted by the challenge of constructing rules and controls that prevent misconduct by the intelligence services without constraining the services to such an extent that they are unable to fulfil their duties. In short, the challenge is to ensure that the intelligence agencies pursue a legitimate mandate in a legitimate manner.

The Review Commission (which reviewed the National Intelligence Agency (NIA); the South African Secret Service (SASS); the National Intelligence Coordinating Committee (NICOC); the National Communications Centre (NCC); the Office for Interception Centres (OIC); and Electronic Communications Security (Pty) Ltd)) reported that the intelligence agencies in South Africa have not fully embraced the constitutional system with its requirements for openness, transparency and accountability and have not always adhered to the letter and spirit of the Constitution and the law.

Although South Africa’s intelligence legislation and governance arrangements have undergone dramatic transformation since the end of apartheid in 1994 and now compare favourably with those in established democracies, there seems to be a disconnect between what the law requires and what happens in practice.

For example the Review Commission found that the Minister of Intelligence has issued secret regulations that are known only to the intelligence community. The intelligence legislation permits the Minister to do this despite the constitution’s clear statement that regulations must be accessible to the public. Similarly, the Constitution provides that the Auditor General’s reports must be submitted to the relevant legislature and must be made public. Nevertheless, the audit reports on the intelligence services are presented only to the parliamentary Joint Standing Committee on Intelligence (JSCI) and are classified.

As the Report points out (and as Dr Nathan has pointed out elsewhere), despite the fact that the Constitution states that national budgets and budgetary processes must promote transparency and accountability, the annual budgets of the intelligence services are secret; they are reviewed by the JSCI but are not presented to Parliament.

By executive decision the members of the intelligence services are excluded from the labour rights in the Bill of Rights, but this limitation of rights is not covered by legislation as required by the constitution. The Review Commission argued that these deviations from the Constitution are unsound and impermissible. This view was shared by the National Treasury with respect to the intelligence budgets; by the Auditor General with respect to the audit reports on the intelligence services; by the Inspector General and the State Law Adviser with respect to labour rights; and by the Inspector General with respect to the use of intrusive measures.

Most seriously, the Review Commission found that intelligence services regularly infringed on the right to privacy through intrusive methods that are unconstitutional. For example, it found that the NCC, which intercepts electronic signals such as cell phone conversations, is engaged in eavesdropping that is unconstitutional and unlawful. This is because the centre fails to comply with the requirements of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002, which prohibits the interception of communication without judicial authorisation.

It is in this context that the Secrecy Bill must be evaluated. It may be that the Review Commission Report was acted upon decisively and that the culture of secrecy and lawlessness reported on in the Commissions finding have been addressed in a bold and decisive manner. But, given the fact that it is always difficult to change a culture of secrecy that is deeply entrenched, it will not be surprising if the serious problems with the Intelligence Services (which threaten the health of our constitutional democracy) have persisted or have even become worse.

Imagine what would happen if the Intelligence Services tapped your phone (or the phone of any other person considered — rightly or wrongly — to be an “enemy of the state”), if they abducted you (or any other person considered — rightly or wrongly — to be an enemy of the state”) and “rendered you to Pakistan, the USA or Syria to be tortured and maybe killed. What would happen if these institutions with access to mountains of information and the technology and manpower to run disinformation campaigns and terrorise people, embarked on secret projects to destabilise civil society groups, social movements, labour movements or opposition parties who they perceive to be threatening the stability of the state?

If the state were then to be conflated with the government of the day, what will emerge is a national security state in which the normal laws of the country may not apply as strictly to the intelligence community, while its abuse of power and flouting of the law would be difficult if not impossible to expose without facing arrest and eventual imprisonment for between 2 and 25 years. The Secrecy Bill will then become a powerful weapon to protect this national security state and will protect its agents and the institutions who act in such illegal ways from exposure in the media.

When Moloto Mothapo, from the Office of the ANC Chief Whip, wrote late last year that the Secrecy Bill was essentially a security Bill, not a media Bill, “aimed at protecting the national security of the Republic of South Africa”, this reassurance might have been more illusory than most people might have realised.

It is in this context that claims of the security establishment that the Bill is firmly in line with best international practice must be interrogated. During a National Assembly debate on the Bill late last year, State Security Minister Siyabonga Cwele said: “We have looked at international best practices and there is no country which practises such reckless practice.” He said that even Britain’s Official Secrets Act did not include a public interest defence.

Putting aside the fact that — unlike Britain – South Africa has a written Constitution that contains a set of fundamental human rights which can be enforced by our courts, these claims are not as plausible as one might at first believe them to be. For example, those who claim the Bill contains international best practice, might either be unfamiliar with (or might deliberately be misleading the public about) the fact that in 1995 a group of experts in international law, national security, and human rights, the International Centre Against Censorship, in collaboration with the Centre for Applied Legal Studies of the University of the Witwatersrand, adopted the Johannesburg Principles on National Security, Freedom of Expression and Access to Information in Johannesburg and that the Bill in no way measure up to these principles.

The Principles have been endorsed by Mr. Abid Hussain, the UN Special Rapporteur on Freedom of Opinion and Expression, in his reports to the 1996, 1998, 1999 and 2001 sessions of the United Nations Commission on Human Rights, and referred to by the Commission in their annual resolutions on freedom of expression every year since 1996.

Principle 15 state that:

No person may be punished on national security grounds for disclosure of information if (1) the disclosure does not actually harm and is not likely to harm a legitimate national security interest, or (2) the public interest in knowing the information outweighs the harm from disclosure.

This principle thus captures the so called public interest defence, something that our politicians say is foreign to international law. This claim clearly is not sustainable. This principle is further supported by a whistle blowers provision in principle 16 which states that “[n]o person may be subjected to any detriment on national security grounds for disclosing information that he or she learned by virtue of government service if the public interest in knowing the information outweighs the harm from disclosure”.

Furthermore, principle 18 states that the “[p]rotection of national security may not be used as a reason to compel a journalist to reveal a confidential source”.

If one reads the Johannesburg Principles and one evaluates the provisions of the Secrecy Bill against these principles then it is clear that the Secrecy Bill does not, as our Minister of Secrecy and other officials claim, comply with international best practice (best practice captured in the Johannesburg Principles).

Even if we had no worries about the possible abuse of the Intelligence Services (which would be naive, even in the most progressive state), the Secrecy Bill should therefore raise serious concerns about the power and influence of the security services and the corruption of the state by the various spy agencies whose job it is to obfuscate, lie and hide information (sometimes for a worthy cause and often for a nefarious cause).

But given the content of the Intelligence Review Report (a report authored by a credible expert and two people intimately connected with the ANC and the government it leads), the fact that our Minister of State Security is so adamant on passing a piece of legislation that almost certainly infringes on the right of access to information and the right of freedom of expression protected in the Constitution, must be truly worrying. And the worry stems less from the narrow concerns raised by the media and more from a broader concern about the securitisation of South Africa’s democracy and the potential devastating effect this may have on social movements and other grassroots democratic forces who might pose a challenge to the entrenched interests of a certain faction of the governing party who controls the state.

Should a court help to make the state’s case for secrecy?

Nov 29th, 2011

by Pierre De Vos.

157 comments

The right of every person to have access to any information held by the state is guaranteed by section 32 of the Constitution. The Promotion of Access to Information Act (PAIA) gives effect to this right. Unfortunately, many state officials (as well as private bodies) undermine respect for the Rule of Law by refusing to adhere to the provisions of PAIA, either by not responding to requests for access to information at all, or by refusing access to information where this refusal is not clearly justified by the provisions of PAIA.

Most people who request access to information do not have the resources to approach a court to challenge this culture of secrecy which is deeply entrenched in our society (in both public and private institutions). When an individual or institution therefore approaches a court to challenge the denial of access to important information held by the state or a private body, the court should be careful not to bend over backwards to assist state officials in denying access to information, information which is the lifeblood of any democracy.

Unfortunately today a majority of judges of the Constitutional Court handed down a judgment in the case of President of the RSA and Others v Mail & Guardian Media Ltd, in which they came to the assistance of the Presidency who had utterly failed to make out a case for why a report prepared by two judges sent to Zimbabwe by then President Thabo Mbeki to look into that country’s troubled election should not be made public.

This was a close run affair with 5 judges (including an acting judge who might still one day be appointed to the highest court) overturning the High Court and Supreme Court of Appeal judgment, and 4 judges supporting a strong dissent. The majority judgment, authored by former Chief Justice Sandile Ngcobo (and concurred in by Froneman J, Mogoeng J, Mthiyane AJ and Yacoob J), makes all the right noises about the dangers of state secrecy by emphasising the importance of the right of access to information, stating that the importance of this right in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid.

It is impossible to hold accountable a government that operates in secrecy. The right of access to information is also crucial to the realisation of other rights in the Bill of Rights. The right to receive or impart information or ideas, for example, is dependent on it. In a democratic society such as our own, the effective exercise of the right to vote also depends on the right of access to information. For without access to information, the ability of citizens to make responsible political decisions and participate meaningfully in public life is undermined.

The majority also correctly points out that PAIA places an evidentiary burden on the party denying access to information to demonstrate that its denial of the information is justified. The Presidency had argued that the denial was justified, first, because the report would reveal information supplied in confidence by or on behalf of another state or an international organisation. This explanation merely recounted the wording of section 41(1)(b)(i). Secondly, the Presidency argued that stated that the record contains an opinion, advice, report or recommendation obtained or prepared for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law. This likewise recounted the wording of section 44(1)(a).

The Presidency failed to produced any plausible evidence by those directly involved in the matter, namely the President (at the time, this was Thabo Mbeki), or the two judges (Justices Moseneke and Khampepe, who both recused themselves from hearing the case), all of which could have confirmed the bold (but unsubstantiated) assertions made by the Presidency about why they were justified in denying access to the report. As an afterthought, so it seems, the Presidency argued that it could not provide a more persuasive justification for its refusal, as section 25(3)(b) and section 77(5)(b) of PAIA provide that a person who refuses access must exclude from the reasons stated “any reference to the content of the record”.

In order to give the Presidency another bite at the cherry to justify that which it had failed to justify before the High Court, the Supreme Court of Appeal and the Constitutional Court, the majority relied on section 80 of PAIA which allows a court to call for additional evidence in the form of the document to which access was denied to have a secret “judicial peek” at that document itself. Section 80 allows the court to conduct a secret review of the document to determine whether the justification for the denial of access was valid or not.

The majority warned that courts should exercise their discretion to call for additional evidence in the form of the contested record only where there is “the potential for injustice as a result of the unique constraints placed upon the parties in access to information disputes”. This injustice may arise, said the court, “because either the requester or the holder of information is prevented by factors beyond its control from presenting the evidence necessary to make its case”.

Because the officials in the Presidency who made submission to the court were not directly involved in the commissioning or production of the report, the majority found that they were required to study the report itself and come to a conclusion about whether it should be made public. The state was therefore “hamstrung” from presenting further evidence in support of its claim to the exemptions. The majority therefore found that the High Court and the SCA should have demanded to have a “judicial peek” at the document to decide whether the refusal was justified in terms of the provisions of PAIA relied upon. The majority therefore referred the matter back to the High Court to do just that. This means the process will start afresh – if the Mail & Guardian has sufficient funds to fight the whole battle anew.

As I read the majority judgment, it assumed — without any credible evidence being presented by the Presidency to that effect — that the Presidency was unable to make a proper case for secrecy because its officials could not quote directly from the report. This did not wash with the minority.

The strongly worded minority judgment, authored by Justice Edwin Cameron (Jafta J, Nkabinde J and Van der Westhuizen J concurring), provides cogent arguments for why the Presidency had to hand over the report immediately. The minority argued that the Presidency had failed to justify its refusal of the record under PAIA, and further failed to provide a plausible basis for a plea that the statute made it impossible for it to provide adequate reasons for its refusal.

The Presidency’s information officer had made no reference in his reasons to the provisions of the statute that prohibit a decision-maker from making any reference to the content of the record when giving reasons for a refusal. Moreover, the pivotal submission by Frank Chikane contained no more than “bald assertions” — which did not constitute evidence at all. Chikane did not state why he claimed to have personal knowledge of the issue. Justice Cameron then proceeded to argue as follows:

As the Supreme Court of Appeal pointed out, one can gain personal knowledge of an event in three very different ways: by experiencing it directly; by receiving a report that it happened (which is hearsay); or by deducing from other signs that it took place. Mr Chikane does not tell us in which of these ways he acquired personal knowledge. This leaves a court unable to perform its most elementary function, which is to assess the quality, strength and reliability of his knowledge in determining whether the fact to which he deposes is true. The mere assertion that he has personal knowledge gives no help in that duty. It follows that his assertion is without value as evidence of the fact in issue. …

The Court rightly noted that the Presidency‘s case amounts to “little more than rote recitation of the relevant sections and bald assertions that the report falls within their terms”. The witnesses offered not reasons, but perfunctory conclusions. This, the Court said, provided a stark contrast with the culture of accountability and transparency that our constitutional era promised. Indeed, the Supreme Court of Appeal likened the approach in the affidavits of the Presidency‘s witnesses to that under apartheid, where government officials exercising wide powers were able simply to assert that they had fulfilled the requirements of the statute, without offering any evidential basis for this.

The minority further pointed out that it was inexplicable that neither the President at the time, or any of the judges involved provided evidence that would support the denial of access to the document.

Neither former President Motlanthe nor President Zuma could cast light on the judges‘ mission. President Mbeki could, but there was no affidavit from him. So the question is — why did President Mbeki not testify? Was he asked or not asked? If asked, did he refuse? Or if not asked, why?

Perhaps even more telling was the absence of evidence from the two judges. They, like former President Mbeki, are living and seemingly available. Why did they not testify? Were they asked? If not, why? A simple affidavit from any of them may have put a quick end to the issues.

The Presidency‘s hands were not tied. It could have obtained direct evidence from any one of the three people most intimately involved in the mission. It failed to do so. More even, it failed to explain why.

The minority also cautions against the use of section 80 of PAIA that would allow the court to have a secret “judicial peek” at the document. It should only be as a last resort that judges should demand to have a “judicial peek” at the document to which access is being denied, said the minority. Moreover this section “should not be used to help government make its case when it has failed to discharge the burden the statute rightly places on it”.

There are good reasons for a court to avoid reliance on section 80 to have a secret peek at the document being denied to come to a secret conclusion based on a secret process. Although it might be necessary to do so, the risks inherent in resorting to secret judicial examination are so grave that it should be avoided if at all possible. Quoting from the Supreme Court of Appeal judgment, Cameron pointed out the dangers of the majority’s approach:

Courts earn the trust of the public by conducting their business openly and with reasons for their decisions. I think a court should be hesitant to become a party to secrecy with its potential to dissipate that accumulated store of trust. There will no doubt be cases where a court might properly make use of those powers but they are no substitute for the public body laying a proper basis for its refusal.

Nor should the public ever fear that courts may assist in suppressing information to which the Constitution says they are entitled. To give secret judicial examination of disputed records a central place in deciding claims to exemption, instead of enforcing the burden government rightly bears to justify withholding information, is in my view a grave error.

The minority would therefore have ordered the immediate release of the document as the Presidency had utterly failed to justify it being kept secret.

The two judgments handed down today present starkly different attitudes towards secrecy and the role of the executive in keeping secrets. The majority bent over backwards to find ways of not ordering the immediate release of the report, despite the fact that the executive had utterly failed to make a plausible case for keeping the document secret. The minority looked at the evidence provided by the Presidency, determined that it had not provided any cogent reasons for keeping the report secret and would have ordered its release.

The first judgment can therefore be read as displaying a rather touching (or perhaps naive) trust in the inherent honesty and probity of the executive and its commitment to an open and democratic society based on openness, transparency and accountability. The minority looked at the facts and applied the law as it relates to the facts presented to the court. It took the law at face value and interpreted and applied it in a manner that would inhibit state officials from denying access to important documents and then justifying it by making bald and unsubstantiated assertions of their right to do so.

How to fix the Secrecy Bill and make it constitutionally compliant

Nov 24th, 2011

by Pierre De Vos.

90 comments

The South African democracy is founded, inter alia, on the values of “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”. The notion of open, accountable and transparent government runs like a golden thread through the Constitution which contains several specific provisions to give effect to these values. To this end the Bill of Rights contains two specific clauses that guarantees open, transparent and accountable government.

Section 16 of the Bill of Rights guarantees for everyone the right “to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research”. Section 32 guarantees for everyone the right to access ”any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights”.

The Bill of Rights, it must be noted, does not say that only some people have a right to access information held by the state, neither does it state that everyone has a right to access only that information held by the state which the government of the day believes the population could be trusted with. These provisions are sweeping and all-encompassing, giving substance to the notion of an open and democratic society established by our Constitution. Any legislation that curtails the freedom of the media to inform the public and (just as important) the freedom of ordinary people to access or receive and impart information, infringes on the right guaranteed in section 16. Legislation that prohibits people from accessing any information by the state similarly infringes on section 32 of the Bill of Rights.

There can therefore be little argument that the Secrecy Bill infringes on these two rights which the Constitutional Court has stated is pivotal for the proper functioning of the democracy. However, no right is absolute and can be limited but only to the extent that the limitation is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose”.

At the heart of the Secrecy Bill debate is whether the limitation on our rights contained in it conforms to what is acceptable in an open and democratic society and whether less invasive measures could have been employed to achieve a legitimate purpose of restricting some state information in order to protect South Africans from terrorism and other attacks and to protect us from attacks agains the constitutional order itself (attacks, it might be add, which can easily emanate form the security and intelligence services itself – just as the people of Egypt). Any restrictions that go beyond this will not pass constitutional muster. Where the restrictions are over broad, they cannot be justified. That is why the Secrecy Bill, in my view at least, is clearly unconstitutional. Let me explain.

Section 12 of the Bill allows various organs of state (the military, the police, the intelligence services and any other government department or organ of state given permission to do so) to classify documents when it could cause harm to South Africa’s national security. The first problem with the Bill is that “national security” is defined too broadly. It states that “national security” includes the protection of the people of the Republic and the territorial integrity of the Republic against various threats, including “exposure of economic, scientific or technological secrets vital to the Republic”. This definition is over broad in three distinct ways.

First, the word “includes” must be deleted as it suggests that the definition does not contain a closed list of factors that constitutes national security but is open ended. This gives classifying bodies the right to “invent” other national security concerns as it sees fit — even when these have not been included in the definition contained in the Bill.

This must be read with section 14(3), which must also be deleted. This section states that:

Specific considerations with regard to the decision whether to classify state information may include whether the disclosure may-

(a) expose the identity of a confidential source, or reveal information about the application of an intelligence or law enforcement investigative method, or reveal the identity of an intelligence or police source when the unlawful disclosure of that source would clearly and demonstrably damage the national security of the Republic or the interests of the source or his or her family;

(b) clearly and demonstrably impair the ability of government to protect officials or persons for whom protection services, in the interest of national security, are authorised;

(c) seriously and substantially impair national security, defence or intelligence systems, plans or activities;

(d) seriously and demonstrably impair relations between South Africa and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the Republic;

(e) violate a statute, treaty, or international agreement, including an agreement between the South African government and another government or international institution; or

(f) cause life threatening or other physical harm to a person or persons.

Read with the open-ended definition of “national security”, this section invites spies, the military and the police to turn South Africa into a secretive police state. It allows the security services to classify almost any document about its activities. If rogue elements in the security services use underhand methods to spy on citizens; to use dirty tricks against legitimate political opponents and social movements and to target them unfairly for criminal investigation; to undermine opponents of one or another faction within the governing party, these provisions would allow them to classify all documents relating to that.

It would also allow ministers and the top brass of the military and the policy to draw a veil of secrecy over their own activities, including their travel and their spending on hotels and other luxuries. Lastly, it would also allow the state to hide any information about money donated by a foreign government to the governing party or to ministers, state officials or the President; bribes given by a foreign company to government officials, ministers opt the President or any information about any contract concluded with a foreign company — which in future would include almost all aspects of arms sales by or to South Africa.

Section 3 should also be amended. At the moment it allows all security services (including those trusted police commissioners who seem to be so fond of crooks) from classifying documents and also allows the MInister of State Security to give permission to any other organ of state (from each municipality and government department, to the Natal Sharks Board) to classify documents. Only the Minister of State Security should be given this power and only for documents in possession of the intelligence services.

Section 15 and 43 are also over broad and hence unconstitutional. Section 15 states that a person who is in possession of a classified “record knowing that such record has been unlawfully communicated, delivered or made available other than in the manner and for the purposes contemplated in this Act… must report such possession and return such record to a member of the South African Police Service or the Agency to be dealt with in the prescribed manner”. Anyone who fails to do so commits a crime for which he or she could be sent to jail for 5 years. Section 43 prohibits many categories of people (excluding whistle-blowers in the employment of the state who complies with the strict provisions of the whistle-blower act, but including all members of the media) from disclosing the content of classified documents and anyone who contravenes this section could be sent to jail for 5 years.

Thus a person would be criminally liable if he or she is in possession of the document or makes that document public even if the document was wrongly classified to cover up corruption, authoritarian actions by the security services or to hide illegal activities or maladministration by the securocrats or the police. There are two ways to deal with this. Both are plausible and easily achievable by the legislature.

First, a limited public interest defence can be written into the Bill which will set out criteria for when classified documents could be lawfully possessed and published because it was in the public interest to do so. Such a section could list situations in which possession and publication will be allowed. This could include when documents are classified merely to cover up corruption or maladministration; where it reveals criminal activity on the part of individuals inside and outside the government; where documents reveal actions by officials or politicians that have the potential to undermine the constitutional democracy; or when the documents reveal actions which endanger the lives of citizens. This could all be made subject to a very carefully crafted limitations stating that this publication will only be justifiable if the public interest in publishing the information outweighs the interest of the state in keeping it secret.

Alternatively the Bill could state that where documents are wrongly classified to cover up corruption, illegal activity or activities that undermine democracy or where the classification was never justified in terms of the act (something that can be determined by a court on objective grounds), a person could not be prosecuted for leaking or publishing the documents. I prefer the first option but perhaps the second option would go some way to limit the far-reaching effects of this legislation.

Lastly, the sections on the Classification Review Panel will have to be redrafted, especially sections 22(3)-(5) and section 24. This panel is empowered to review classification decisions and in order for it to provide the intended safeguard against wrongful or criminal classification of documents, it would need to be absolutely independent. These sections allow the majority party in the National Assembly to appoint the panel and to remove any of its members. This means that the panel van never be perceived to be independent and will be prone to political manipulation. To fix these sections, it could be rewritten to allow for the appointed (and the removal) of members of the review panel by 75% majority of members of the National Assembly. Alternatively, some other mechanism requiring consensus of all the major parties in the National Assembly to appoint and remove the members of the Review Panel is needed.

I believe these amendments would go a long way to restrict the ambit of the Act and if these amendments are made by the NCOP (or by the National Assembly after the President has referred it back to the National Assembly because of its unconstitutionality) it might pass constitutional muster. If not, the President must not complain that the Constitutional Court unlawfully makes policy by declaring invalid acts passed by the Parliament when it finds aspects of this Bill unconstitutional. All that is needed is for cool heads to listen to sound advice. It was offered here and elsewhere. Now it must just be acted upon.

Who can we trust?

Nov 22nd, 2011

by Pierre De Vos.

166 comments

Very few people implicitly and unconditionally trust all government officials, all members of the cabinet and all the members of the intelligence services of their country. Few, surely, believe that they will always act scrupulously, honestly and in strict accordance to the law and the Constitution. (Hell, I am not even sure President Zuma fully trusts all his own ministers.)

One might well implicitly trust ministers and government officials if they belong to the politically party that one passionately supports. Thus, some DA members might blindly trust Helen Zille, while some ANC members might blindly trust Jacob Zuma. But very few of those DA supporters would blindly trust Zuma and very few of those ANC supporters would blindly trust Zille.

And whether one is a die-hard ANC supporter or a die-hard DA supporter, there cannot be too many people around who would blindly trust the members of the intelligence services (in other words the spies whose job it is to deceive, to keep secrets, and to obfuscate, all in the name of protecting national security). Given the way in which our spies have been implicated in various political plots relating to various ANC factions, only a fool will tell you that he or she believes our spies always respect the letter and the spirit of the law and always act honestly, and in the best interest of the Constitution and us citizens.

Most would worry that our spies might at some point act in the interest of one or other faction in the ruling party, in the interest of members of the police or the military (as some did in attempts to try and protect the corrupt former Police Commissioner) or merely in their own interest. After all, members of the intelligence service have often acted unlawfully and unconstitutionally over the past few years and quite a few were eventually fired as a result.

This is why a discussion of the dangers of the Protection of State Information Bill passed by the National Assembly today (and now to be discussed by the National Council of Provinces), raises difficult questions. On the one hand the Bill on its face is not nearly as draconian as members of the media keep arguing. The Bill represents a vast improvement on the truly draconian Bill first tabled in Parliament last year and — at least on paper — now contains many safeguards to protect us against the emergence of a secretive national security state or the abuse of the Bill to cover up corruption, maladministration and other kinds of criminality in government.

However, on the other hand, the Bill cannot be judged on paper only, but must be judged in the context in which spies and politicians have often been revealed over the past few years to be less than honourable and respectful of the law.

The problem with the new “improved” version of the Bill and the safeguards included in it, is that it assumes that we can blindly trust all government Ministers, state officials and spies to understand the intricacies (and seemingly contradictory aspects) of this Bill and to always apply it in accordance with this perfect understanding of the various provisions of the Bill. It also assumes that those who are empowered to classify documents and review the classification of documents will do so with one eye on the Constitution. Furthermore, it assumes rather optimistically, that the Minister of State Security (whose wife was recently convicted of drug running), other Ministers authorised to classify documents and the spies whose job it is so sow confusion, spread lies and generally to deceive others while hiding behind a cloak of secrecy, will not abuse their powers and will only act in accordance with the letter and spirit of the Bill.

Of course we know that a number of Ministers, including Defence Minister Lindiwe Sisulu and State Security Minister Siyabonga Cwele, have refused to answer questions about their travel costs and hotel stays on the grounds that this would compromise their personal security, displaying a rather authoritarian view on keeping secrets in the interest of so called “security” and abusing the excuse of security to evade accountability for possible wasteful expenditure (or worse). One will therefore have to be an eternal optimist to believe that Ministers, spies and other officials authorised by this Bill to classify documents as secret or top secret will not abuse that power at some point or another.

(And even if one is such an optimist as well as a member of the ANC, one should remember that no government remains in power for ever and that this Bill will one day also be applied by people who are not ANC members.)

Having said that, it is clear that the main aim of the Bill is not to protect Ministers or the government more generally from exposure for corrupt and other nefarious activities. Section 3(2) of the Act states that the classification, reclassification and declassification provisions of the Bill apply to the security services of the Republic (in other words, the Army, the Police and the Intelligence Services).

However Section 3(2)(b) also allows any organ of state (including any government ministry) to ask the Minister of State Security to empower them to classify documents that could supposedly threaten “national security”. If the Minister exercises this power prudently, the scope of the Bill will be much reduced. However, given the paranoid and defamatory statements by the Minister that those who oppose passage of the Bill are being funded by foreign spy agencies, and given that there is a serious question mark over the Minister’s probity and judgment, it is not clear that he will not abuse this power.

Section 12 of the Act states that state information may be classified as confidential “if the information is sensitive information, the disclosure of which is likely or could reasonably be expected to cause demonstrable harm to national security of the Republic”. State information may be classified as secret “if the information is sensitive information, the disclosure of which is likely or could reasonably be expected to cause serious demonstrable harm to national security of the Republic”, while state information “may be classified as top secret if the information is sensitive information, the disclosure of which is likely or could reasonably be expected to demonstrably cause serious or irreparable harm to the national security of the Republic”.

‘‘National security’’ is defined as including (and one therefore presumes, is not limited to) the protection of the people of the Republic and the territorial integrity of the Republic against the threat of use of force or the use of force; as well a hostile acts of foreign intervention directed at undermining the constitutional order of the Republic; terrorism or espionage; exposure of a state security matter with the intention of undermining the constitutional order of the Republic; and exposure of economic, scientific or technological secrets vital to the Republic. It explicitly excludes lawful political activity, advocacy, protest or dissent.

With the exception of the subsection dealing with economic or technological secrets, this list looks innocuous. But the list is not a closed list, which opens the door wide for any crook or authoritarian to abuse the provisions of this Bill to keep secrets relating to the undermining of democracy or the hiding of corruption. Moreover, this definition must be read together with section 14(3) of the Bill which states that those classifying Bills as secret must consider whether the disclosure may

expose the identity of a confidential source, or reveal information about the application of an intelligence or law enforcement investigative method, or reveal the identity of an intelligence or police source when the unlawful disclosure of that source would clearly and demonstrably damage the national security of the Republic or the interests of the source or his or her family;
clearly and demonstrably impair the ability of government to protect officials or persons for whom protection services, in the interest of national security,are authorised;
seriously and substantially impair national security, defence or intelligence systems, plans or activities;
seriously and demonstrably impair relations between South Africa and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the Republic;
violate a statute, treaty, or international agreement, including an agreement between the South African government and another government or international institution; or
cause life threatening or other physical harm to a person or persons.19

If a spy (or a Minister who wishes to hide the fact that he or she has been living it up at the Mount Nelson or has visited a girlfriend in a Swiss jail) read section 14(3) in isolation, he or she may well classify information that would clearly have very little to do with national security. What is therefore limited by the definition of “national security” might well be smuggled back into the act via the back door in section 14(3) of the Bill.

I can already imagine Minister Lindiwe Sisulu from pointing to the second bullet point above to justify the classification of all sorts of documents that might embarrass Ministers or might expose the corruption they have been involved in. Because the Bill is so complicated, it would be difficult to make plausible arguments in the public domain that the Minister is abusing the Bill. Some executive minded judges might even agree with the interpretation by a Police Chief (remember the two most recent ones have both fallen under the bus because of corruption), a Minister or a spy relying on section 14(3).

But this is not the end of the matter. Section 32(1) does provide a safeguard which could in certain circumstances be effective. It states that a person who wants to gain access to a classified document may apply to a court for appropriate relief after the requester has exhausted the internal appeal procedure against a decision of the relevant Minister of the organ of state in question. If one has every reason to know that a document exists (for example, that a document exists which sets out the cost of a Minister’s travel and Hotel stays) , this avenue will be costly but mostly effective (unless one is unlucky enough to have to argue one’s case before a slavishly pro-executive judge).

The problem arises where one receives a document that is classified and the only way one would have known of its existence is if one had been leaked the document. One must then immediately hand back the document to the Police before one can challenge the wrongful classification. If one fails to do so, one could be prosecuted and sentenced to jail. If one holds on to the document, the Minister might say that such a document does not exist and one would not be able to contradict him or her as this would amount to an admission of committing a crime. Moreover, how one would convince a court that a document should be declassified if one does not have access to the document, is not clear.

In short, on paper the Bill that was passed today is not as bad as many in the media argue. But in practice it might be devastating as it might protect our spies and our politician from scrutiny, the very scrutiny required to keep them on the strait and narrow. It might set us on the slippery slope towards a secretive national security state — as Steven Friedman argued today in Business Day. As an afterthought, it might also help to protect the venal and the corrupt.

Although safeguards do exist in theory, in practice these safeguards will often be illusory (especially for anyone without access to very clever lawyers and pots of money) unless those entrusted with applying the law will always act absolutely honestly, with brilliant insight into the law and with one eye towards the Constitution. The chances of this happening is about as slim as the chances of me winning the Miss World Competition.

This means, for example, that where activists of Abahlali baseMjondolo or the Landless People’s Movement are illegally targeted by the security services because they are perceived to be a threat to the ANC government and their phones are bugged, their houses attacked or their leaders tortured and murdered, it would be almost impossible for the organisation to prove this when all the documents that could do so are classified. Ironically, only the media will have the resources to expose such abuse of power, but this would require the media (targeted at middle class readers) to display far more concern for the well-being of these social movements whose interests do not always align with the interests of the middle classes served by the serious media.

In a state in which trust has been eroded, a Bill like the one passed today becomes even more scary than it otherwise would have been. The strong reaction of civil society to the Bill therefore says just as much about the specific provisions of the Bill than it says about the fact that the governing party and state institutions have squandered the trust and goodwill it had acquired over many years of struggle. No wonder the ANC politicians are so upset.

Manyi’s adspent plan probably unconstitutional and illegal

Jun 15th, 2011

by Pierre De Vos.

11 comments

The announcement by Mr. Jimmy Manyi, CEO of the Government Communication and Information System (GCIS), that the Cabinet has decided to consolidate all media spending by government departments — worth about R1bn a year — under the Government Communication and Information System (GCIS) to achieve economies of scale and “more bang for its buck”, has created a predictable furor in the media. Predictable, because the move would threaten the profitability of newspapers and their owners and shareholders would obviously not like this.

When making the announcement, Mr. Manyi said that the government was concerned that its message was not getting through to the populace. He insisted that as long as the media performed its function of passing on government information, as well as acting as government watchdog and critic, then there was no need to worry. Allocations of advertising would be decided on the basis of which media outlets were most effective in passing on the information about government programmes and service delivery and would be based on a segmentation of the different audiences. “We want to make sure that government information is out there,” Mr Manyi said.

The people who are going to put out our content more effectively to the public of SA are the people we are going to focus on. I can tell you this right now. To the extent that government information gets passed on, we will work with those people… We just want the truth. Government has programmes of action and would like citizens to know the truth about service delivery, opportunities in government, etc. Once you have done this, you can do what you like, you can criticise as much as you like. We want criticism. Criticism will help us improve.

The question is whether this move would be constitutional and whether it would be legal to make decisions about where to place government adverts based on the content of the particular publication. Can the government “reward” publications for reporting more comprehensively (or less critically) on its activities and “punish” publications who do not?

I suspect that it could not and that the plan is both unconstitutional and illegal.

Of course, Manyi is correct that newspapers do not always report comprehensively on what government does or what it says it is doing (which, sadly, is not always the same thing). There is a good reason for this. Most of the announcements emanating from government departments are neither sexy nor controversial while much of government communication is so boring that not even the most slavishly pro-government publication would want to carry news of it for fear of boring their readers to death. Perhaps the only reason why newspapers would carry news of these many unremarkable if worthy government initiatives were if they were “bribed” to do so.

The problem is that Mr. Manyi seems to conflate two completely different issues.

The first issue is whether newspapers report comprehensively and fairly on government initiatives. Many newspapers probably do not. This would often be because the information is of little interest to a newspaper’s readers, who would prefer to read about Julius Malema’s latest outrageous statement aimed at making him sound like a radical revolutionary with a Breitling watch or to read about the latest Idols racism controversy. Sometimes newspapers do not report on government initiatives and plans because government communicators are not doing their jobs properly and are communicating the information in such an amateurish and dry fashion that it would make reports of the World Curling Championships look exciting and sexy.

If the government wishes to address this issue it would surely have to advertise in exactly those newspapers who had not reported comprehensively and fairly on its activities in the first place. If it advertised in those newspapers who had already reported comprehensively and fairly on its activities, it would be wasting taxpayers money because it would be targeting the very audience who may already be sufficiently informed about government activities. But Manyi seems to suggest that it might do exactly the opposite and that the government would advertise in the newspapers who had already informed its readers as a way of “punishing” those newspapers who had not.

A second issue is whether the government is getting “bang for its buck” in the sense that the advertising reaches those people at whom it is aimed. If one wants to advertise jobs at the National Treasury, say, one would obviously target the Mail & Guardian or the Sunday Times as these two publications are known for carrying these kinds of job adverts and those in the market for a job would read these publications. One would get “bang for one’s buck” only if one advertises in these publications read by job seekers and not if one advertised in the Polokwane Observer or the Atlantic Sun. If the government made decisions on where to place such advertisements based on whether a newspaper had reported comprehensively and fairly on its other activities, it would again be wasting taxpayers money because it would be advertising in publications in which the advert would not have the desired effect.

In both cases, this move would probably be unconstitutional and illegal. Section 217(1) of the Constitution states that when an organ of state – which would include the GCIS – contracts for goods or services, “it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective”. This section must be read with section 16 of the Constitution, which guarantees freedom of expression, including freedom of the press and other media.

Where the government made decisions on how to spend its advertising budget not based on considerations related to whether it was effectively targeting the intended audience, but on the content of the newspaper involved, it would, in effect, be “punishing” newspapers for not writing what the government wishes it to write. Using its financial muscle in this way to try and influence or censor the media would amount to imposing indirect limtations on the freedom of the media. This might well be found to be unconstitutional.

This is not the end of the matter. The Public Finance Management Act, giving effect to the provisions of the Constitution, contains strict requirements for the spending of public funds and prohibits “unauthorised expenditure”, which is defined as expenditure not in accordance with the purpose for which the money was allocated, or “fruitless and wasteful expenditure”, which is defined as expenditure which was made in vain and would have been avoided had reasonable care been exercised.

If money was allocated to advertise the work done by the government, it would have to be spent in a cost effective and targeted manner for this purpose and not for the purpose of rewarding those publications who published news of a government minister opening a day care centre in Lusikisiki or visiting the Bredasdorp agricultural show. If money was allocated for a more specific purpose – say to advertise government jobs – this money once again had to be spent cost effectively to ensure that the advert would attract the widest and most qualified pool of applicants and not to “punish” or “reward” a newspaper.

Section 38 of the Act makes clear that the Director General or the head of the Department – in this case Jimmy Manyi – had a duty to maintain “an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost-effective”. Such a person is also responsible for the “effective, efficient, economical and transparent use of the resources of the department, trading entity or constitutional institution”.

Section 86 of the Act states that an accounting officer who “willfully or in a grossly negligent way fails to comply with the provisions of section 38″ is guilty of an offence and liable on conviction to a fine, or to imprisonment for a period not exceeding five years. As the punishment of newspapers for not writing about the government in a manner that the government wishes could never be a deemed to be a constitutionally valid reason for using taxpayers money, any such expenditure would by its very definition be unauthorised and wasteful and hence illegal.

I must stress that these provisions do not mean that the GCIS would not be permitted to spend money on advertising the work done by the government and its various departments. If Mr. Manyi or members of the cabinet believe that some newspapers are failing to report comprehensively and accurately on government’s activities and initiatives, it would be entirely appropriate to buy advertising space in those newspapers who are perceived as failing in their reporting, in order to inform the readers of that paper about the good work done by the government.

Ironically, it would be exactly those newspapers who are perceived not to be reporting accurately or fairly who would have to be targeted in order to ensure that the expenditure on the advertising is not viewed as unauthorised or fruitless and wasteful. The very newspapers whom the government might not like would be the one’s cashing in on the government advertising budget.

“Truth and deceit know no status or occupation”

Jun 1st, 2011

by Pierre De Vos.

39 comments

The alleged “investigation” and subsequent report by the then Public Protector, Lawrence Mushwana, into the Oilgate scandal lambasted the Mail & Guardian newspaper, contending that the newspaper’s reports on the scandal was “factually incorrect, based on incomplete information and documentation, and comprised unsubstantiated suggestions and and unjustified speculations”. Today a full bench of five judges of the Supreme Court of Appeal (SCA) confirmed that there was in essence no investigation by the Public Protector at all and that the report was no more than a whitewash.

In a damning judgment – which places a question mark over Adv Mushwana’s fitness to hold office as head of the South African Human Rights Commission – the SCA confirmed that the Public Protector “had no basis for discrediting the newspaper as he did”. In the process, the SCA provided clarity on the legal required manner in which the Public Protector had to investigate serious allegations of malfeasance and corruption. The judgement emphasises the importance of the role of the Public Protector in safeguarding our democracy and strengthens its hand in dealing with future investigations.

Although the judgement comes as a stunning loss for Muswhana, it must be viewed as a victory for the institution of the Public Protector.

The SCA judgement reminds us that – when investigating a complaint – the Public Protector must do more than merely adjudicating on verified information placed before it by others. The Public Protector is an investigator who, either on own innitiative or because it received a complaint, has a pro-active function to get to the bottom of allegations of maladministration or corruption. “He or she is expected not to sit back and wait for proof where there are allegations of malfeasance but is enjoined to actively discover the truth.”

As the SCA judgement so eloquently stated today:

The Public Protector must not only discover the truth but must also inspire confidence that the truth has been discovered. It is no less important for the public to be assured that there has been no malfeasance or impropriety in public life, if there has not been, as it is for malfeasance and impropriety to be exposed where it exists. There is no justification for saying to the public that it must simply accept that there has not been conduct of that kind only because evidence has not been advanced that proves the contrary. Before the Public Protector assures the public that there has not been such conduct he or she must be sure that it has not occurred. And if corroboration is required before he or she can be sure then corroboration must necessarily be found. The function of the Public Protector is as much about public confidence that the truth has been discovered as it is about discovering the truth.

When investigating any allegations levelled at state officials, politicians or public bodies, the Public Protector has to conduct such an investigation with an open mind, which is “universal and indispensable to an investigation of any kind”. That is the benchmark against which the SCA assessed the investigation in the Oilgate case.

That state of mind is one that is open to all possibilities and reflects upon whether the truth has been told. It is not one that is unduly suspicious but it is also not one that is unduly believing. It asks whether the pieces that have been presented fit into place. If at first they do not then it asks questions and seeks out information until they do. It is also not a state of mind that remains static. If the pieces remain out of place after further enquiry then it might progress to being a suspicious mind. And if the pieces still do not fit then it might progress to conviction that there is deceit. How it progresses will vary with the exigencies of the particular case. One question might lead to another, and that question to yet another, and so it might go on. But whatever the state of mind that is finally reached, it must always start out as one that is open and enquiring.

Today the SCA found that the Public Protector had not conducted the Oilgate investigation with an open mind. He had, in effect, acted as a spokesperson for those who he was called upon to investigate, merely stating as fact the claims made by the various bodies and individuals under investigation without testing the veracity of these claims in any way. This he did because he assumed that persons in high office are always persons of integrity whose version of events must be believed. The SCA found that this attitude was inappropriate.

Truth and deceit know no status or occupation. One expects integrity from high office but experience shows that at times it is not there. And while experience shows that journalists can be cavalier there are times when they are not. It is the material that determines the veracity of the speaker and not the other way round, and that applies universally across status and occupation. It is the hallmark of this investigation that responses were sought from people in high office and recited without question as if they were fact. An investigation that is conducted in that state of mind might just as well not be conducted at all. The investigator is then no more than a spokesman, who adds his or her imprimatur to what has been said, which is all that really occurred in this case. I have said before that an investigation calls for an open and enquiring mind. There is no evidence of that state of mind in this investigation.

The Mail & Guardian has now been vindicated – at least to the extent that the Public Protector’s criticism of the newspaper was unfounded. One would think that Adv Mushwana, as well as the politicians who lambasted the newspaper after the whitewash report was made public, owe the newspaper an apology. Although is is highly unlikely that the newspaper’s detractors will apologise, it is worth noting that serious allegations were levelled at the newspaper at the time.

As the SCA judgement notes, Hansard’s report of proceedings in the National Assembly when the report was tabled records one member of Parliament asking of an opposing political party, on the basis of that finding, and to applause, what kind of party it was that relied upon newspaper reports of the Mail & Guardian for its political interventions. Another described the Mail & Guardian as “the choirmaster in the chorus of unsubstantiated allegations”. Yet another said that the report should “caution us to be ready for what we read in the papers and the credibility of relying on such material as [being] accurate and dependable”.

I hold no brief for the newspaper. Newspapers do make mistakes and if they do, they can be sued for defamation or taken to the Press Ombud. But in these days when the printed media is being used by some as a scapegoat to avert attention from the governance problems of the governing party or from serious allegations of corruption by politicians, one may do well to remember that one should not easily assume that allegations printed in the media forms part of a bourgeois or racist plot to discredit the National Democratic Revolution.

In short, what is required – for the media, the public, the politicians and the Public Protector – is to keep an open mind until the truth has been discovered. The Public Protector – using the guidelines developed by the SCA – is well-placed to discover that truth. Let us hope that the new Public Protector will continue the work she has been doing lately and will not shrink from her constitutionally mandated task. Our democracy deserves no less.

Let me tell you a secret…..

May 31st, 2011

by Pierre De Vos.

69 comments

It is much harder to govern an open and democratic society with a free and critical media and an informed citizenry than to govern a secretive, authoritarian state in which cock-ups and corruption by the government and its officials, police brutality and torture of citizens and the looting of state funds by the politically connected business elite can be hidden from the public at large.

In an open and democratic state, information about malfeasance and corruption is often leaked to the media and those responsible for the wrongdoing are exposed as the thieving, lying, brutal crooks they often turn out to be. In a democratic state politicians have to keep one eye on public opinion and have to consult citizens who might oppose the grandiose or corrupt schemes concocted in the name of economic development and progress.

This emphasis on openness, transparency and accountability can be inconvenient and time-consuming and can thwart the bureaucratic plans of state apparatchiks who have decided what people need and how their needs have to be satisfied. Providing citizens with access to information can also be “dangerous” as it can lead those citizens to change their political party preferences and can lead them to vote for another party to form a government – even before Jesus returns to earth.

Just ask the unspeakable Tony Blair, whose career gratifyingly came to an end after his craven and dishonest defence of the illegal invasion of Iraq (on the basis that it was required to protect the national security of the United Kingdom), was comprehensively exposed as a pack of lies - leading to a complete collapse of his credibility.

No wonder the ANC government is hell-bent on passing a draconian Secrecy Bill into law. Although a new version of the Bill – currently being debated by an ad hoc committee of Parliament – is an improvement on the previous version, it remains a truly scary piece of legislation. It is an improvement in much the same way as Prime Minister BJ Vorster was an improvement over Hendrik Verwoerd.

Here is why.

The Bill as it is currently formulated applies to all organs of state. Such organs of state will be required to consider whether any of the documents under its control should be classified as “confidential”, “secret” or “top secret”. Unless the Minister of State Security decides to grant an exemption to an organ of state, the body will be bound by this Act and will be REQUIRED to review all documents to decide whether they should be classified or not. The Minister has the final say on whether to grant an exemption and if he decides not to exempt an organ of state there is no appeal available to challenge his decision. This is the same minister whose wife has been convicted of drug trafficking and who has not resigned or provided any explanation or denial of his own knowledge of, or complicity in, the criminality of his wife.

Thus, a national security state is brought into existence.

The organs of state include (and I am providing a random selection from a list prepared by Idasa of more than 1000 such organs):

the University of Cape Town, the Johannesburg Fresh Produce Market, the Polokwane Housing Association, the Public Protector, the Human Rights Commission, the Medical Research Council of South Africa, the National Gambling Board, the National Lotteries Board, the National Nuclear Regulator, South African Library for the Blind, William Humphreys Art Gallery, the Bushbuckridge Water Board, the Eastern Cape Liquor Board, Blue IQ Investment Holdings (Pty) Ltd, the Natal Sharks Board, Limpopo Roads Agency, Bela-Bela Local Municipality, Ikwezi Local Municipality and Xhariep District Municipality.

The absurdly broad provisions of the Bill which would have required the classification of documents in the “national interest” have been replaced by new provisions which, while not as patently draconian as the first draft, still allow ample opportunity for organs of state to hide important information from the public. Much of this information will be the kind of information that ordinary citizens would need to be aware of if they wished to be active and democratically responsible citizens, empowered to make informed choices about their political actions, values and beliefs. (Maybe Lead SA could do something worthwhile for a change and could launch a campaign against this Bill aimed at keeping citizens passive and ignorant.)

Thus section 15 of the Bill requires classification (and hence secrecy) of the following kinds of information.

Sensitive information which is likely or could reasonably be expected to cause demonstrable harm to the security or national security of the Republic or could prejudice the Republic’s international relations must be classified as confidential.
Sensitive information which may endanger the security or national security of the Republic or could jeopardise the Republic’s international relations must be classified as secret.
Sensitive information which may cause serious or irreparable harm to the security or national security of the Republic or may cause other states to sever diplomatic relations with the Republic must be classified as top secret.

It is important to note that national security is defined in extraordinarily broad - I would argue even authoritarian - terms. The definition is not compatible with an open and democratic society based on human dignity, equality and freedom and deals with far more than the real concerns about the security of the state. (On the other hand, it is compatible with a national security or Stalinist state, I guess.)

“National security” is defined by the Bill as “the resolve of South Africans as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life”. This includes “protection of the people and occupants of the Republic from hostile acts of foreign intervention, terrorist and related activities, espionage, and violence whether directed from, or committed within the Republic or not, and includes the carrying out of the Republic’s responsibilities to any foreign country”.

In other words, according to this Bill, the protection of national security extends far beyond the protection of the state against internal and external security threats. Issues of inequality, “peace and harmony” (which sounds like something a Miss World would aspire to achieve during her reign and could mean almost anything), and economic development are all incorporated into the definition of national security.

This suggests that any information, which – if it becomes known - is likely to disturb good relations between different communities or within a community, is likely to affect the ability of the state to achieve social and economic equality or hamper economic development, and any information that might upset a foreign government would have to be classified as confidential, secret or top secret.

Such information might well include reports about service delivery failures or plans to implement new employment rules for the civil service to address the “oversupply of coloureds” in the Western Cape, reports of Universities on race-based admissions policies, reports on land redistribution, reports about the state of electricity supply, reports on contaminated water supplies, reports on a crumbling road infrastructure or plans to impose road toll tariffs, reports on the sale of weapons to other countries or reports about South Africa’s involvement in negotiations about the crisis in Zimbabwe or Libya.

The current wording of the Bill is also extremely confusing and in places seem to be contradictory as it requires quite draconian classification of documents overseen by the Minister of State Security while also purporting to provide “safeguards” to prevent the “over-classification” of documents. These safeguards are included in section 17, which states that “secrecy exists to protect the national security” (itself a rather ominous and authoritarian sounding statement).

However, section 17 then proceeds to state that classification may not be used to conceal an unlawful act or omission, incompetence, inefficiency, or administrative error; restrict access to information in order to limit scrutiny and thereby avoid criticism; prevent embarrassment to a person, organisation, or organ of state or agency; unlawfully restrain or lessen competition; or prevent, delay or obstruct the release of information that does not require protection under the Act.

It is difficult to see how the heads of many of the more than 1000 organs of state authorised to classify documents will not focus on the former provisions that demand classification of the most anodyne documents in the name of a laughably broad definition of national security while ignoring the latter safeguards. As there seems to be a great deal of tension between the demand in the Bill to keep secrets of the most trivial kind and the provisions which purport to instruct classification only when it is absolutely necessary, many officials will surely err on the side of secrecy (because governments like to hide things from the public because they intuitively know that it is in their interest to hide the truth) and the “safeguards” are likely to safeguard very little.

Because officials will be called upon to make decisions about what is secret and what not, because governments all over the world almost universally wish to hide rather than illuminate information, and because governments often end up believing that their own political survival should be equated with the survival of the state itself, this Bill – when passed – will provide officials and politicians with the cover they need to turn our country into a secretive security state.

Section 23 also allows a person to request a head of an organ of state to declassify information in furtherance of a “genuine research interest or legitimate public interest”. If the request is denied one can appeal the decision to the Minister of State Security, the very politician whose job it is to keep secrets and who is tasked by the President to keep as many secrets as he possibly can (also, it seems, secrets about whether he knew anything about his wife’s drug trafficking).

But it is unclear who will ever be brave enough to lodge such an application, which will mostly be futile in any case. This is because section 18 of the Bill states that a person who is in possession of a classified record knowing that such record has been unlawfully communicated, delivered or made available, must report such possession and return such record to a member of the South African Police Service or the Agency. If a person fails to comply, that person is guilty of a crime and must be sentenced to a minimum three year prison sentence.

This means that if a brave or foolhardy state official leaks classified information that exposes corruption or important information about the workings of the government to a journalist, that journalist must inform the police immediately. The police will, of course, want to know from whom the journalist had obtained the information. This will expose journalists to severe pressure to reveal their sources, something they are ethically required not to do.

The journalist will also have to hand the documents back to the police and will then have to ask the very head of the organ of state and then the Minister of State Security (who might very well have been implicated by the documents) to declassify the documents. If the journalist decides not to hand back the document, but asks for its declassification, the police will most likely come swooping on that journalist or the newspaper the journalist works for (as it swooped on the Public Protector), because one can only ask for the declassification of a document if one knows about its existence and if one knows about its existence one will be assumed to be in possession of it.

Of course, a request to declassify documents might also be met by a claim that the documents do not exist. It would often be impossible to refute such claims because a journalist would have to admit that he or she is committing a crime and is in possession of the said documents in order to challenge the claim that the documents do not exist.

The journalist can of course hand back the documents and then ask for them to be declassified. But if such a request and subsequent appeal to the Minister of Secrets is turned down – as it is likely to be done – then the journalists would only be able to obtain the documents again if his or her newspaper has a few million Rand to challenge the decision all the way to the Constitutional Court.

The effect of this Bill will be to further limit access of citizens to the kind of information they need to exercise their democratic choices as responsible citizens. It is a draconian piece of legislation based on the Orwellian assumption that secrecy is the bedrock of democracy. It will encourage officials to think about information as something not to be shared with the public; something to which the public is not entitled to have access to; as something threatening that might very well have to be kept secret to protect the state from instability and preserve harmony and peace and friendship until the end of time, amen.

Why the good people in the ANC is remaining quiet while their colleagues plot to turn South Africa into a secretive security state is beyond me. Every person of conscience who belongs to the ANC and serves in a leadership position in the ANC has a duty to speak out against this Bill. Those good people in the ANC who fail to speak out will surely not be able to look themselves in the mirror ever again. This is not a trivial issue on which one can remain tactically silent. Either one speaks out, or one reveals oneself to be a unprincipled, undemocratic or cowardly supporter of censorship or even authoritarianism.

Gareth is (still) very cross (and morally outraged, too)

Mar 1st, 2011

by Pierre De Vos.

97 comments

Gareth van Onselen, the DA’s “executive director of special projects” (scary title, dude!), is morally outraged at the manner in which various editors and “media pundits” have responded to the DA’s decision to punish Sowetan journalist, Anna Majavu. The DA removed Majavu from its mailing list because the “DA had no further comment for this journalist” who had been writing damaging stories about the DA.

In a scathing piece, brimming with moral outrage, Van Onselen has taken on the various DA critics, arguing that moral outrage is almost always “unprincipled”.

In fact, he went further. Quoting British moral philosopher, AC Grayling, he suggested that “what moral outrage always aims at is censorship”. Van Onselen at first argues that the expression of moral outrage is always a bad thing as “its consequences are often absurdly undemocratic”. The dangers of moral outrage are severe because:

good and bad become absolutes. Murder and offence are elevated to the same moral standing. Ambiguity is banished and, with it, human nature. It is divisive, the kind of attitude that generates ‘us versus them’ thinking and, make no mistake, that kind of absolutism is the foundation on which authoritarianism is built.

Perhaps realising that he is implicating himself and the party he serves in censorship and authoritarianism (after all, the piece he has written and almost all the press releases of the DA lambasting the ANC for its various sins are filled with moral outrage), he then seems to contradict himself by stating that it is:

possible to be rightfully outraged at some moral injustice, but in order that it is distinguished from the unthinking self-righteous anger identified above, such an expression must be grounded in a set of values against which the subject of that outrage is gauged. Detached from those values, the ‘moral’ part of ‘moral outrage’ is lost and all that remains it outrage”. It is the latter of those two types of outrage to which Grayling refers and which, sadly, is prevalent in South Africa today.

In other words, when Van Onselen and the DA express moral outrage it is grounded in a set of values and therefore acceptable. When the DA expresses moral outrage it never results in ”us versus them” thinking – except in the polluted and deranged minds of the DA critics who scandalously and in an utterly unprincipled manner express outrage at the DA’s alleged ”us versus them” attitude contained in the “Stop Zuma” and “Fight Back” campaigns. But when critics of the DA express moral outrage this is never grounded in a set of principles (liberal or otherwise) and thus necessarily amounts to censorship (of the DA) and therefore inevitably deteriorates into authoritarianism.

To sum up: according to Van Onselen, DA = good; DA critics = evil; DA = not absolutist; DA critics = absolutist. Yeah, not logical, I know. I guess all that pent up moral outrage must have clouded old Gareth’s ability to construct a logical argument. (Gareth, why don’t you start a Blog – it’s a great place to express moral outrage!)

The argument – as far as I can follow it – is that the DA’s critics are unprincipled because the DA has a right not to communicate with a journalist. If the DA, according to its own criteria (which one assumes Van Onselen believes are objectively applied to the DA by the DA – an idea the DA would have been morally outraged by if expressed by the ANC), decides that a journalist is not fair to it, it may express its displeasure by cutting off contact with that journalist. The DA’s critics are arguing that the DA does not have this right. This is undemocratic. In fact, according to Van Onselen’s logic, this leads to an autocracy. Why is it, asks Van Onselen, that at no point has any one given any consideration to the possibility that Anna Majavu is, in fact, biased? Instead they all assume the DA is in the wrong.

(Incidentally, on this last point Van Onselen contradicts himself because later in his piece he points out that I did ask whether Majavu was biased by focusing on the story which preceded the move by the DA to remove Majavu from its mailing list. Van Onselen studiously avoids addressing the fact that at the time he had told a big whopper by claiming the press Ombudsman had found in favour of the DA in that case when – on the salient points – it had found in favour of Majavu. He also claims that this particular case had little to do with the move by the DA – despite the fact that Majavu just happened to have been removed from the DA list on the day the DA submitted a complaint to the Press Ombudsman about the particular story. Appartently this is a sheer co-incidence. I guess there will be a few people who believe this claim.)

Which brings me to the heart of the matter, namely whether criticism of the DA was based on any discernable principle or on a set of values. My claim is that the criticism was based on the values of freedom of expression and democratic pluralism in an open and democratic society and on the principle that powerful political players must not act in a way that will have a chilling effect on press freedom.

First, the claim that criticism of the DA amounts to censorship, is not sustainable. This is an old trick used by politicians to avoid criticism: conflating criticism with censorship. Most of us who criticised the DA stated that we thought the DA was wrong. I, for one, never argued that the DA had no constitutional or legal right to punish Majavu. The DA has every right to take a journalist off its mailing list or to refuse to comment when that journalist contacts it. The rest of us had every right to criticise the DA for its action. This is not censorship or authoritarianism: it’s actually called democracy. The DA should try it some time.

An example: Van Onselen has the right to make racist remarks as this is not unconstitutional or illegal in South Africa. I have the right to criticise him for making racist remarks. When I do, I am not censoring him, I am expressing my opinion which is at the heart of my right to exercise my freedom of expression. Even if I criticise the racist remark in a way that amounts to the expression of “moral outrage”, it is still my right to level such criticism. Van Onselen suggests that if he made a racist remark and I expressed moral outrage about it, I would be censoring him and would be encouraging authoritarianism.

Sjoe, and he also claims to be a liberal.

Apparently we are not allowed to express an opinion about the actions of the DA – unless that opinion is based on a principle which the DA agrees with. To me this attitude sounds rather authoritarian, but I guess Van Onselen will say that I am not allowed to express that opinion either because it amounts to unprincipled moral outrage (not based on a set of DA values) which by its very nature leads to authoritarianism.

Go figure.

Second, although Van Onselen cannot see this, an important principle is in fact at stake here. The DA is not a private entity – like a book club or a knitting society. The DA is a political party which, in terms of our Constitution, plays an important role in our democracy, representing opposition voters and taking part in the legislative process and in the oversight of the executive. It competes for our votes during elections and governs the Western Cape and the City of Cape Town.

Although not as powerful as the ANC, it exercises considerable power – both the hard power of office and the soft power associated with its influence on the political discourse and importance for the media in selling newspapers. Not reporting on the DA would be like not reporting on Julius Malema: the sales of a newspaper will suffer. The DA is therefore not a helpless victim of the media, but a powerful co-player in the media game.

As is the case with the ANC, it is important that the media scrutinise the actions of the DA and that a wide array of news outlets report on the actions of the DA from their various perspectives. Some media outlets will be broadly supportive of the DA and others will be more critical. If the DA believes the reporting has breached any law or code it can take the matter up with the Press Ombudsman or the courts. If it believes that the reporting is unfair, it has a right to say so. For example, when a finding is made that a DA councillor had shot at black children and then laughed about it and this is reported by the media, the DA can complain that the media had reported this fact at all. After all, it is not used to be at the receiving end of such negative – if true – reporting.

The relationship of the media to big political parties is complex. Political parties want to use the media to provide good publicity about themselves and to assist them with their propaganda so that voters would like their party and would vote for it. The various media outlets want to remain in the good books of the political party because it needs to cultivate contacts in that party who can feed it with juicy information about the internal workings of the party (which is a staple of news reporting) and gossip and criticism of the opposition parties. At the same time the media has a duty to expose wrongdoing by members of a political party and to report on matters which really place that party in a bad light.

Where a political party like the DA “protests” against the reporting of a particular journalist by removing her from a list and in effect, suggesting that it would refuse to engage with that journalist, this has a potentially chilling effect on journalists in general. Such a move is intended to send a message to journalists that the DA will take steps against a journalist who consistently give it bad publicity. The message is that journalists who deal with the DA better beware. “Don’t f*!ck with us because we will cut you off!”

If a journalist writes articles – even if these are essentially true – that embarrasses the DA, the party might take steps to break off contact with that journalist. This is a kind of punishment. In the bigger scheme, removing someone from the DA’s mailing list is a very slight punishment. (Some would argue it is a kind of reward.) But the principle is clear: “This time we only removed you from our mailing list, but next time we might make sure that no-one in the DA speaks to you and we might cut you off from sources inside the party which you may need to report properly about the party or about politics in general.” As US Supreme Court case law makes clear, the threat of taking action against the media can itself have a chilling effect on the exercise of freedom of expression by the media.

The action against a journalist therefore sets a precedent. It suggests that if the DA (as opposed to an independent body like the Press Ombudsman or the courts) has decided that you are biased against the DA, the DA reserves the right to punish you - even if at first the punishment will be mild. It is not unlawful or unconstitutional for the DA to do this. It is, however, unprincipled and wrong. It is essentially aimed at intimidating journalists in general: Cross us, says the DA, and who knows what actions we will take against you to ensure that your sources of information inside the DA dry up. We reserve a right to take action against journalists whom we do not like.

The liberal mantra about freedom of expression is that: “I do not agree with what you write but I will defend to death your right to write it”. The DA has adopted an illiberal mantra which states: “You can write what you like but if we do not like what you write about US we will not defend you. In fact, we will try and make your job more difficult and we will take steps to make sure that you do not write about us or write about us as little as possible. We will do this because we can.”

Put differently the DA is saying that it has a right to refuse to engage with a journalist. They are correct, of course. No one can force the DA to engage with a journalist. But having a right and exercising the right is not the same thing as being right and acting in a principled and ethically correct manner. (As I said: One has a right to be a racist, but it is never right to be a racist.)

In my view, when political parties refuse to engage with journalists whom they do not like, they are acting in a way that threatens press freedom. No journalist wants to be cut out of the loop. If a party uses its considerable power over the media (as journalists depend on political parties for information and comment) to cut pesky journalists out of the loop, chances are that other journalists will self-censor so that they will remain in the good books of the party. The casualty of all of this is, of course, freedom of expression – the very freedom of expression that the DA claims to revere.

In my book that is hypocritical. Gareth, on the other hand, will probably claim that I am expressing unprincipled moral outrage and that I am therefore censoring the DA and acting like an authoritarian. You decide who is right.

Why a free flow of information is important

Jan 31st, 2011

by Pierre De Vos.

62 comments

Throughout the 20th century, the Partido Revolucionario Institucional (PRI) had held complete power at the state and federal level in Mexico. For 60 years the PRI won regular elections of various degrees of freeness and fairness. Because Mexico was a one party dominant democracy, the dominance of the PRI created its own momentum and it became almost unthinkable for the majority of voters not to support the PRI.

To get ahead in the civil service, to win government tenders, to be appointed as a school principle or police chief, one had to be seen to be a supporter of the PRI. And because of the overwhelming electoral support enjoyed by the PRI it was easy for it to discredit and even de-legitimise opposition parties. Only the PRI spoke for the masses of the people and only the PRI could be trusted to govern the country and to bring revolutionary development and change to the people (along with enormous prosperity and wealth for PRI leaders and those who knew them).

And because of its dominance and its control of much of the media, it managed to win elections despite increasing allegations of corruption and nepotism levelled against it. There just was no one else to vote for and no one to trust. But this could never last: In the end Mexicans began to distrust everyone – including the leaders of the PRI. While some still believed that it would be in their interest to continue voting for the PRI and returned the PRI to power after every election, many people did not vote at all.

Thus the support of the PRI slowly began to recede in the late 1980s, but especially since the 1990s with the emergence of new forms of technology like cell phones and the Internet, with the growth of a more confident and informed middle class who eventually voted into office a former Coca Cola Executive as President. (That is like South Africa voting into office a former CEO of Anglo-American or the Rembrandt Group.) In 1989, the first non-PRI governor of a state was elected (at Baja California). It was in 1997, that PRI lost its absolute majority at the Congress of the Union, and in 2000 the first non-PRI president was elected since 1929.

Mexico shed its one party dominant character and today politics are robust and open. Although Mexico has many problems – drug lords seem to be able to terrorise citizens in many part of the country and effectively control the government in some parts – it did not go through the kind of violent convulsion we have seen in the last three weeks in Tunisia and now in Egypt. This is because Tunisia and Egypt have been authoritarian police states propped up by the USA government, who has poured more than $1.5 billion in military aid into Egypt each year since Egypt signed a peace deal with Israel.

Egypt holds regular elections but it would be a stretch to call it a democracy as there are severe restrictions on freedom of speech, the government has ruled under emergency powers for more than 30 years and there are severe restrictions on political organisation and mobilisation. Egypt is therefore more like Zimbabwe than South Africa. It is ruled nominally by the National Democratic Party (NDP), but this party is little more than an extension of the will of the President.

Watching the NDP headquarters in Cairo go up in flames on Al Jazeera on Friday night, my first thought was whether, thirty years from now, we will be watching Al Jazeera and seeing Luthuli House go up in flames during a revolt by unemployed and relatively educated youth which would shake the hold of the ANC government on the country to the core.

No political party can govern for ever. Even a liberation movement like the ANC will someday stop governing South Africa. This will probably happen either because the ANC was successful enough to create a big enough middle class whose interests does not coincide with the traditional working class constituency of the ANC and the one or the other class would desert the party (as happened in Mexico), or it would happen because the ANC would have lost all credibility and legitimacy because of increasing repression, linked to enormous corruption and nepotism and rising unemployment.

In the first instance the change might well come peacefully. The last ANC leader in power will lose an election and will retire peacefully (maybe opening an institute focusing on democracy building or anti-corruption efforts). This is what happens in a relatively free and open society: at some point the political party in power loses support and another party with different ideas win the election. Once that happens, South Africa would have become what political scientists call a mature democracy.

But if the ANC becomes more repressive - if it passes the draconian Protection of Information Bill, then a Bill creating a politician appointed Media Appeals Tribunal, then start taking measures further to limit political freedom and the ability of both parliamentary opposition groups and social movements to organise and to present a vehicle for those disaffected with its increasing corrupt and autocratic style, if it amends the Constitution and packs the courts with unprincipled lackeys – the last ANC leader in power might well have to seek political asylum in Zimbabwe or perhaps in the USA if he or she wants to escape the wrath of the people.

If the SABC becomes an ever more vocal mouthpiece spouting ANC propaganda, if we also start saying as they do in Egypt, that one cannot believe any rumour until it has been officially denied on state TV, if media laws restrict or completely repress the free media and monitor the Internet and anyone critical of the regime is fearful of talking on his or her phone because that phone will most certainly be tapped by the intelligence services, then a peaceful change becomes ever less likely. It is then that we will see the burning of Luthuli House and the storming of the SABC’s Auckland Park offices, when hundreds of thousands of people will march through the streets of Johannesburg and Cape Town and the army will scramble to see if any of their tanks are actually working so that they could be ordered into the streets to try and quell the demonstrations.

This is the lesson I take from what is happening in North Africa: in the end in the modern world with Internet and sattelite TV and mobile phones and rising levels of education amongst the population, political opression and control of the media can never ensure that a political party remains in power for ever. All it would do is heighten the chances of a violent uprising that will destroy the incumbent political party who tried to stay in power by repression. As Parliament deals with the Protection of Information Bill which – in its present form – would allow more than 1000 organs of state, including Zoos, universities, and Arts councils, to classify documents deemed a threat to state security – I hope that they remember that often a restriction on information in the long term is more dangerous for those in power than openness and transparency could ever be.

Charm or intimidate?

Jan 10th, 2011

by Pierre De Vos.

41 comments

For some reason today I thought about a former Director General of the SABC, a guy called Riaan “Koedoe” Eksteen. He used to be friends with then State President PW Botha before they had a falling out. The big clash came when the Reverend Alan Hendrickse resigned from PW Botha’s cabinet after he went for a swim on a “whites only” beach in protest at the remaining “petty apartheid” still enforced by the then National Party government.

Hendrickse was the leader of the Labour Party who was the majority party in the “House of Representatives”, the so called “coloured” House in the laughable tri-cameral Parliament, and as a gimmick PW Botha had included Hendrickse in his cabinet to try and show that his “reforms” were not cosmetic.

But after Hendrickse went for the swim, PW Botha (not a man with an even temper) lost his cool. He was even more incensed when he watched the eight’o clock news that evening (in those days the SABC’s main news bulletin was at eight in the evenings) and saw that Hendrickse had resigned. In fact, Botha claimed that he had fired Hendrickse before he could resign.

Botha then phoned Koedoe Eksteen and ordered that Botha’s letter in which he fired Hendrickse be read out no less than three times during the half hour news programme. Poor Freek Robinson, who was reading the news that night, was then told to do as Botha had ordered. Robinson first refused but he was told it was a management decision and he then proceeded to read that letter three times.

Six months later Robinson was “moved” to London, something many SABC watchers at the time interpreted as punishment for his initial reluctance to follow the orders of the President. Botha claimed at the time that he had not ordered the letter to be read but merely requested that it be read — three times, of course!

Now we live in a constitutional democracy and the SABC is supposed to be a public broadcaster that serves the entire community — not only the governing party. Although the SABC is more of a state than a public broadcaster and has a pro-ANC slant, as far as we know the blatant interference in the editorial content of news programmes are a thing of the past. Whether the head of the SABC Board or the Chief Executive Officer still receive phone calls from politicians to instruct them what to air and what to censor is unclear, but if it still happens, the new guys clearly are not nearly as brazen as PW Botha who ensured that the SABC was nothing else but a plain propaganda arm of the National Party.

Compared to the SABC in those years, the broadcaster is now a paragon of objective and responsible journalism.

But what about our print media? Do journalists and editors at our newspapers also get angry phone calls from politicians and if they do, is this appropriate? I have been reliably told by one political journalist that he used to be woken up at the crack of dawn by angry phone calls from a certain opposition politician who angrily denounced his reporting and demanded some form of correction — until the journalist complained to other members of the party about her actions and pointed out that this kind of intimidation was unacceptable.

Would it be acceptable if the President or some other important ANC leader phoned up the editor of the Sunday Times to complain about a news report, to issue threats or to demand retractions or a change in the tenor of the reporting of the newspaper? If so, when? If not, what other course of action is available to political parties if they are aggrieved with the reporting of a newspaper? And what about phone calls to the owners of the Sunday Times?

Would it make a difference if the politician was from an opposition party and not the governing party?

Maybe because I lived through the Koedoe Eksteen era and because I have always been a passionate supporter of freedom of expression, I lean towards the view that it is not appropriate for political leaders to phone up editors or journalist to complain about the tenor of that newspaper’s reporting as this can very easily be seen as an attempt to intimidate the free press.

Politicians can, of course, ask for a right to reply in the opinion pages of the newspaper or they can write a letter to the newspaper putting across their view. And if they feel that the newspaper has breached the Press Code they can lodge a complaint with the press ombudsman. If a mistake was made (as was the case in the story published in the Sunday Times about the alleged sale of the ocean next to the Waterfront) the editor will surely publish a correction.

But facts are slippery things and need to be interpreted. Usually the way independent journalist interpret the facts differ from the way politicians interpret those same facts. Usually reasonable people (of which some may even be politicians) could disagree about the interpretation of the facts and then there should be no room for a politician to try and change the newspaper’s interpretation merely because the story is unflattering to the politician or the party he or she belongs to.

But maybe I am being unrealistic? Maybe newspaper editors field calls from angry politicians each day and what is required is for the editors to have a strong backbone and to resist any attempts at intimidation by politicians (and to protect their journalists from this kind of intimidation, of course).

If I were a politician I am sure I would often have disagreed with the way the newspapers reported on matters affecting myself or the political party I belonged to. But I suspect I would have tried a different approach than the one set out above by cultivating journalists and trying to charm them. Often the difference between obtaining an “A” or a “D” on the Mail & Guardian’s cabinet report card hinges on whether the cabinet Minister is a media savvy person who tries to charm and impress journalists or whether the Minister acts as if journalists are his or her enemies that have to be fought tooth and nail.

Let’s face it, even today, after so many years some of us shake our heads and remember that PW Botha was a reactionary bigot and an unconscionable bully, while Pik Botha – who served in the same cabinet for many years – is rather more fondly remembered (or at least not remembered as a monster).

It would be interesting to hear what readers of this Blog think about these questions.

media

Secrecy Bill less about media freedom, more about national security state

Should a court help to make the state’s case for secrecy?

How to fix the Secrecy Bill and make it constitutionally compliant

Who can we trust?

Manyi’s adspent plan probably unconstitutional and illegal

“Truth and deceit know no status or occupation”

Let me tell you a secret…..

Gareth is (still) very cross (and morally outraged, too)

Why a free flow of information is important

Charm or intimidate?

Follow me on twitter

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