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Selling horse droppings as figs

Apr 2nd, 2012
by Pierre De Vos.
36 comments

In Afrikaans we have a striking saying describing rather accurately what the keepers of secrets (yes, the spies and double agents and professional liars in the intelligence agencies) are  trying to do with its latest range of advertisements promoting the Secrecy Bill: “Hulle will ons nou wysmaak dat perdedrolle, vye is”. (“Now they want to convince us that horse droppings are really figs.”)

Apart from the fact that the government is not supposed to promote a Bill currently still serving before Parliament and not yet passed into law (as Parliament is currently seized of this matter, and the executive has no truck with the Bill until it is actually passed and becomes law), the advertisements are about as honest and truthful as your average Senior Manager at the Department of Public Works testifying at the Bheki Cele Inquiry.

I focus on the English version, which can be played via YouTube:

 

The text of the advert is as follows:

Female Voice: “Are you following the whole debate about this new law everyone is talking about? Something about state information?”

Male Voice: “Yes. And I see why government worries. All this stuff about identity theft, people being long dead but collecting pensions, the list is endless.”

Female Voice: “But what about corruption? How will the government deal with that?”

Male Voice: “The bill makes it clear that if people try to cover up corruption they will go to jail for up to 15 years, and whistleblowers will be protected.”

Female Voice: “That’s good. But will we still be able to get the information we need from the government?”

Male Voice: “Yes. Our constitution gives us that right. As for the press, the bill doesn’t suppress press freedom at all. When you want information that is classified, you just have to apply for it. If you are still not happy, you can go to court and the judge will decide if it is in everyone’s interest.”

Female Voice: “Yes, sounds reasonable.”

Male Voice: “The thing is that government has to protect its information from criminals. There are spies out there that want to steal our information to develop their own countries at our expense.”

Female Voice: “I see. I want to familiarise myself with the bill more. There’s so much I didn’t know.”

Male Voice: “Great, ‘cause it’s really important that government protects its information. It is about protecting our country and its hard-won freedom. Ensuring that we all live in peace, security and prosperity.”

The thing is, the Secrecy Bill has absolutely nothing to do with identity theft and neither has it anything to do with people fraudulently collecting pensions if they are not entitled to do so. Although section 8 and 9 of the Secrecy Bill deals with the protection of valuable information (which could include personal information about one’s ID held by the state), and although these sections state that such information warrants “a degree of protection and administrative control and must be handled with due care and only in accordance with authorised procedures”, the Bill does not actually criminalise the selling of your ID by a state official and is in no way dealing with identity theft. What a very small part of the Bill does (about 4 of the more than 50 clauses in the Bill) is that it prohibits any person from unlawfully and intentionally destroying, removing, altering or erasing valuable information.

A state official would therefore be punished in terms of this Bill if he or she deleted your ID information from the government database. What the Bill would not deal with at all is identity theft or pension fraud. The law already punishes fraudulent selling of your ID information to others as well as pension fraud, and this Bill has absolutely nothing to do with that. In other words this advert is deceitful and dishonest. This is perhaps not surprising, as the adverts were cooked up by the very spies who, we are told, we should trust with decisions about the need to classify state documents as secret or top secret. I would not trust these people when they tell me what the weather will be like tomorrow – let alone with these decisions that may well hide serious criminality and corruption. (General Mdluli, are you there?)

Ironically, what the adverts do,  is to illustrate beyond all doubt why this Bill is so dangerous. If these people are prepared to deceive the public so blatantly and openly, why would they not lie to us about the existence of wrongly and unlawfully classified documents which we might need to get access to in order to expose corruption or in order to expose the blatant flouting of the law and undermining of our democracy by the intelligence services?

The “safeguards” in the Bill which the advert talks about are therefore illusory. If it is a criminal offense to be in possession of a classified document, and if one tries to get access to a wrongly classified document, the spies will merely claim that the document does not exist, finish en klaar. If one then claims to have seen the document, one will be arrested and charged for possessing a classified document and to admitting to having committed a crime and one could be sentenced to a long period in jail for possessing even an illegally classified document.

It is true that section 43 of the Bill states that a person who is protected by the Protected Disclosures Act may disclose documents despite any provisions in the Bill, which means that a very brave (some would say very stupid) state employee who discovers documents demonstrating criminal activity or corruption by the intelligence services, may leak such documents to, say, the Public Protector.

What the advert does not say is that the Public Protector will then immediately have to take the leaked documents showing serious criminal activity to the nearest Police Station where one of Richard Mdluli’s cronies will be able to receive the document and “deal” with it to protect the intelligence services and those exposed as criminals or crooks in the documents. The Public Protector can then try and get access to the document via various means and after several years – and assuming rather optimistically – that the document had not been “lost” (in other words, destroyed), she might finally get access to that document – long after the crime was committed and the cover up effectively instituted, the witnesses “disappeared” or intimidated into silence or packed off to Tjikitjikistan as the undersecretary of culture.

Moreover, the advert seems to suggest that all active citizens are really no more than potential criminals, suggesting how the paranoid spies view us ordinary citizens. It says that the state has to protect its information from criminals, but it is exactly the kinds of information that we need as citizens that we will be “protected” from accessing. We will not ever again be able to know that intelligence services had concocted another Browse Mole Report to discredit the enemies of the sitting President. We will not ever again be able to know that the spies had taped telephone conversations between politicians or between NPA members. We will not know that senior ANC leaders have been spied on by the intelligence services because the President thought that these leaders might pose a threat to his political ambitions.

Of course, the adverts also display the kind of paranoia that is familiar to students of any fascist police state. Hence it suggests that we need to protect state secrets because if any of these secrets held by the state are ever released, our very freedom (the freedom curtailed by this Bill) will be threatened. Now, I for one cannot imagine what secrets the spies are keeping that are so earthshattering that it would threaten the very life of our nation and our Constitution if it were to be made public. Could it be information about financial donations made by foreign dictators to the President or the governing party? Information about the sex-lives of politicians illegally spied upon by the intelligence services on instructions from the President? Maybe there are documents proving that our spies are plotting to assassinate the President of the United States, which, if revealed, could lead to a US military invasion.

But I doubt that any of these documents exist and even if they did, we will be protected by its disclosure (and disclosure of the unlawful actions by the intelligence services who might have compiled these documents illegally), not by keeping them secret.

This Bill is about protecting the intelligence services and drawing a veil of secrecy over their often unlawful activities in order to enhance the powers of the spies, create a police state within a state and protect the leadership of the incumbent faction inside the ANC from embarrassment and from being ousted in quasi-democratic party elections. It is not about freedom but un-freedom, not about democracy but a threat to our democracy.

If you believe otherwise, I am sure you will also believe me when I say that you should please send me all your banking details (including password) immediately so that I can transfer a few million dollars into your account, which I will do because I need your assistance with transferring fabulous amounts of money into South Africa.

On accountability, transparency and the “bribing” of journalists

Feb 9th, 2012
by Pierre De Vos.
120 comments

It is a rather inconvenient fact (inconvenient for some people, at least) that the notion of an open, transparent and accountable government runs like a golden thread throughout our Constitution. Rejecting the secretive and often lawless bureaucratic managarialism of the apartheid era, in which citizens were more often than not treated as disembodied entities to be ordered around, controlled and sometimes dispensed with (and not as human beings with an inherent human dignity), the Constitution – also in this regard – demands a fundamental break with our apartheid past.

Thus section 1 of the South African Constitution states that the Republic of South Africa is founded on the values, inter alia, of “[u]niversal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”.

These founding values are amplified in several sections of the Constitution to help create governance institutions that are truly open and transparent, that share information about their work, serve people, listen and respond to the concerns of voters, and do not shy away from scrutiny but invite it in order to improve the way in which they serve the public.

Thus section 55(2) of the Constitution states that the National Assembly must provide for mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it and to maintain oversight of the exercise of national executive authority, including the implementation of legislation; and any organ of state. Section 56 also states rather boldly that the National Assembly or any of its committees may summon any person (including any Minister or the President) to appear before it to give evidence on oath or affirmation, or to produce documents and may require any person or institution to report to it. When ministers claim that they have better things to do than account to Parliament or that information cannot be provided to Parliament for “national security” reasons, they are flouting the letter and the spirit of the Constitution.

Section 96(3) confirms this obligation to account by stating that ministers “are accountable individually to the President and to the National Assembly for the administration of their portfolios, and all members of the Cabinet are correspondingly accountable collectively for the performance of the functions of the national government and for its policies”. Section 195 of the Constitution extends these obligations to civil servants by stating that Public Administration must be accountable and that transparency must be fostered in the public service by providing the public with timely, accessible and accurate information.

To beef up this system of openness and accountability, section 32 of the Bill of Rights guarantees for everyone “the right of access to 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”.

It is against this background that one should evaluate the legal wrangling between Independent Newspapers and the ANC regarding the so called “brown envelope scandal” report prepared by the now Deputy Minister of Justice. Recall that the scandal centres around the alleged attempts by former Premier Embrahim Rasool (now safely “deployed” as South Africa’s ambassador to the USA), to bribe journalists in order to get their co-operation in smearing his political enemies inside the ANC and to provide positive news coverage for his ANC-led administration in the Western Cape.

This saga should really give some ammunition to those ANC and SACP leaders who complain that members of the media, civil society groups and other powerful role players are not required to adhere to the same standards of openness and transparency and are not subject to the same forms of accountability as members of the government is. Who guards the guardians, they ask. But curiously, this scandal has not been mentioned at all when these kinds of arguments have been put forward.

(Of course, in extreme cases, the argument is put forward that the constitutionally imposed rules should not be applied to politicians at all because others are not held to the same rules. Like school children caught smoking behind the bicycle shed they say the equivalent of: “But the teachers also smoke.” As such an argument defies logic, I will leave it aside for the moment.)

Nevertheless, this saga does raise serious questions about the ways in which politicians or other powerful and rich individuals or groups could pervert the democratic process by bribing journalists, columnists or other opinion-makers.

Last week judge Bennie Griesel released an internal ANC report (after having a so called “judicial peep at it in terms of section 80 of the Promotion of Access to Information Act (PAIA)) along with a short judgment giving reasons for this. It is very surprising, to say the least, that Griesel J released the report, despite the fact that the ANC might have wanted to appeal his judgment.

It is true that section 82 of PAIA states that the court hearing an application for access to information may grant any order that is just and equitable including orders confirming, amending or setting aside the decision which is the subject of the application. However, section 80(2) of PAIA states that when taking a “judicial peek” a judge may not disclose to any person “including the parties to the proceedings concerned” the contents of the document he or she had a “judicial peek” at.

As I understand these provisions of PAIA, what should have happened is that the learned judge should have ordered the ANC to hand over the report to Independent Newspapers and the ANC would then have had the opportunity to decide whether it wished to appeal the decision or whether it would hand over the report as ordered.

In my opinion the judge committed a serious blunder and the ANC had every reason to complain – on legal grounds – about the premature release of the report. The problem is that the blunder cannot be corrected as the report now forms part of the judgment and can be read by anyone.

However, two further questions arise from this saga. First, the “interim report” noted that the facts uncovered by the investigators raised serious questions about possible impropriety which had to be investigated further. The investigators could not determine the exact nature of the relationship between the Premier and his government on the one hand and the journalists and the company they were involved in on the other hand.

These questions were apparently never further investigated, despite the recommendations of the investigators that it should. The question is: why not? Given the concern expressed by some ANC leaders about the alleged unaccountability of journalists and about the corruption of journalists by money or political interests, it is curious that the party never bothered to find out whether its own Premier had bribed at least two journalists.

Surely, if the ANC was truly concerned about the lack of openness and accountability of the media and if it was prepared to act on its principles, it would have completed this investigation and would have taken firm action against Rasool if it had found that he had indeed bribed some journalists and would have handed the matter over to the police for possible criminal prosecution of the journalists (and of Rasool).

Does this mean the purported concerns expressed about the unaccountability of journalists and civil society leaders only relate to a concern about journalists not reporting favourably on the ANC or concern about civil society leaders who expose ANC government corruption or maladministration? And why was the ANC so desperate to keep this report secret? Surely, if the party was really respectful of the rights of citizens to have access to information, it should have volunteered to make this report public? Somehow it never did and would, so it now says, have even spent even more money to appeal the Griesel judgment had the judge not blundered and made the report public. Why all this secrecy if the party had nothing to hide?

The second, far more complex, question is whether journalists are indeed sufficiently transparent and accountable. How do we know that journalists report honestly and fairly about issues and how do we know that they have not been corrupted by both public and private money and power? When a journalist or columnist say nice things about a political leader, is this because the journalist or columnist was given some shares in a company or given a bribe? If a reporter claims that a new model car is the best in its class, is this perhaps because the vehicle manufacturer has showered the journalists with freebies?

Clearly, journalists and columnists are not in exactly the same position as politicians. Politicians are elected, journalists and columnists are not. Politicians make decisions about how our money should be taxed and how the taxes should be spent, journalists and columnists do not. Politicians can ride the gravy train, journalists cannot. Some politicians have enormous power: they can give instructions to the police to shoot and kill people, they can order the invasion of Lesotho (and how did that one work out for you honourable Mangosutho Buthelezi?), they can legally instruct spies to spread lies about perceived enemies of the state. Journalists and columnists can do none of these things.

The argument that journalists, columnists and civil society leaders should therefore be held accountable in exactly the same way as politicians can therefore not be sustained. Claiming that they exercise more power than the President who can make life and death decisions about our future is, quite frankly, absurd and also obviously self-serving.

Yet, as the brown envelope saga demonstrates, journalists, columnists and civil society leaders do potentially wield considerable power, their words and deeds influence public perceptions and can influence how the electorate vote. And we know that they can all be corrupted. Should we really trust that the “market” will hold them accountable (yeah right!) or that internal ethics rules will ensure that they are never corrupted by those in the public and private sector with the most money and or power?

And if we do not trust them to regulate themselves, how do we ensure some transparency and accountability on the part of journalists, columnists and civil society leaders, without endorsing a system of political control by the very politicians from whom we all need serious protection?

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

Jan 31st, 2012
by Pierre De Vos.
120 comments

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.

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