National security – like patriotism – can be said to be the last refuge of scoundrels. All around the world tyrants and supposed democrats justify oppression, torture, obsessive secrecy, spying on citizens, and state-sponsored assassination – all in the name of national security. National security becomes an excuse to invade other countries and assassinate their leaders, or to cling onto power, to jail opponents or to get the police and the community to attack those who oppose the policies of the government of the day.
It is in this context that we have to evaluate the Protection of Information Bill currently being considered by Parliament. It is also against the background of the purging of Thabo Mbeki supporters from the Intelligence Services and the appointment by President Jacob Zuma of some of his most trusted – if not most honest and trustworthy – allies in the security cluster.
This Bill is an unconstitutional and dangerous piece of legislation that is overbroad. It suggests that somewhere, someone really thinks that our media needs to be stopped from reporting on issues of public concern because it can be bad for the government of the day. In Orwellian fashion section 2 of the Bill claims that it is aimed at promoting “transparency and accountability in governance”. It does nothing of the sort.
The Bill purports to regulate all information – “whether true or false” – that is generated, acquired or received by organs of state or in the possession or control of organs of state. Although the Bill purports to acknowledge the importance of freedom of expression and the need for a free flow of information, these pious platitudes are undermined by various provisions in the Bill that seems draconian in nature. The Bill cautions against using the provisions of the law to protect individuals against allegations of corruption, nepotism and fraud, but the way the Bill is drafted invites the abuse of the law by individuals to protect themselves and others or to protect the governing party.
If passed in its present format it would legalise secrecy and paranoia that would damage our democracy and hamper the media in exposing unlawful and corrupt actions by the powerful and the well-connected. It will also invite the dominant faction in the governing party to abuse the intelligence process and to use the intelligence services (through concocting false reports, fabricating plots and selective leaking of information) against their opponents in the party. It would also make it far easier for government departments and other organs of state from stopping the media from doing its job and from preventing them from exposing corruption, nepotism and maladministration.
The Bill allows for the classification of all “sensitive information” which are protected from disclosure and states that sensitive information is all information that must be “protected from disclosure in order to prevent the national interest of the Republic from being harmed”. And what would this national interest be? Well, section 15 defines it as follows:
15. (1) The national interest of the Republic includes— (a) all matters relating to the advancement of the public good; and (b) all matters relating to the protection and preservation of all things owned or maintained for the public by the State.
2) The national interest is multi-faceted and includes— (a) the survival and security of the State and the people of South Africa; and (b) the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound international relations.
(3) Matters in the national interest include— (a) security from all forms of crime; (b) protection against attacks or incursions on the Republic or acts of foreign interference; (c) defence and security plans and operations; (d) details of criminal investigations and police and law enforcement methods; (e) significant political and economic relations with international organisations and foreign governments; (f) economic, scientific or technological matters vital to the Republic’s stability, security, integrity and development.
This definition is extraordinarily broad. It suggests that any information in possession of the state that could be said to be related to the advancement of the public good can be kept secret. So, all information on World Cup tenders – surely the World Cup is for the national good? – could be kept secret. As conceivable, could all information dealing with BEE deals (which surely is being implemented for the national good?).
Details of criminal investigations could also be kept secret. This means that if an investigative journalist were to find out that the President of the country has taken a huge bribe from an international arms dealer and if that journalist has come into possession of a copy of an encrypted fax basically proving that the bribe was solicited and the bank account details of the company making the bribe proving that it was paid, that journalist may not be able to publish the story as long as the state can say that the information is in their posession, the matter is being investigated by the police and that all the documents have been classified as secret.
Information about all matters relating to the protection and preservation of all things owned or maintained for the public by the State could also become secret. One would then not be able to expose lax security at our airports or in state hospitals if the DG decides to classify these reports. And a report prepared for the minister of health detailing the theft and destruction of property at state hospitals could also be classified as a state secret.
The proposed Bill also allows for the classification as secret of commercial information held by an organ of state. Section 16 of the Bill states that:
16(2) Commercial information becomes the subject matter of possible protection from disclosure under the following circumstances:
(a) Commercial information of an organ of state or information which has been given by an ornganisation. firm or individual to an organ of state or an official representing the State, on request or invitation or in terms of a statutory or regulatory provision, the disclosure of which would prejudice the commercial, business, financial or industrial interests of the organ of state, organisation or individual concerned;
(b) information that could endanger the national interest of the Republic.
This means that all information about government tenders could potentially become state secrets and classified as secret information. Any commercial information that could endanger the “national interest” as defined above could be classified as state secrets. Thus any commercial information dealing with “economic growth, free trade, a stable monetary system” could be potentially classified as state secrets. Any Eskom deals with Zimbabwe could become state secrets as could Eskom deals with aluminium smelters.
Of course, with such extraordinary broad powers to classify information as secret, the question of who would be entitled to classify something as a state secret is pivotal. Section 21 states that any head of an organ of state may classify or reclassify information and that a head of an organ of state may delegate in writing authority to classify information to a subordinate staff member.
The Constitution defines an organ of state as any department of state or administration in the national, provincial or local sphere of government; or any other functionary or institution exercising a power or performing a function in terms of the Constitution or a provincial constitution; or exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer.
This means Menzi Simelane would potentially be able to classify everything that he does not want to have reported as state secrets. Perhaps the Vice Chancellors of Universities, the Chairperson of the SABC Board and the Boards of all parastatals will all have the power to classify information as top secret because it would not be in the national interest to reveal it to ordinary people.
After all, we are only mere citizens and we must be protected from hearing any information that could make us depressed or could make us lose trust in the government of the day. It would surely not be in the national interest for ordinary citizens to start thinking that their leaders are corrupt and selfish sods who should not be trusted under any circumstances. So better to hide these facts from voters who might get upset and vote for someone else.
One can ask for information to be declassified (if one knows that it exists of course) but only those with deep pockets and lots of patience will be able to go down that rout and eventually to challenge the classification in court.
Meanwhile the orgy of classifying information as state secrets will continue and we would be deprived of vital information needed to fulfil our rights and duties as active citizens. Journalists will be in a rather awkward position because the Bill imposes penalties from between 5-25 years for divulging state secrets or for even receiving any classified information. So if they do challenge the classification of information, the first thing the state will ask is: how do you know this information exist at all? Do you have it in your possession?
Secrecy is the enemy of democracy, accountability and the fight against corruption and nepotism. This Bill is so broadly drawn that if it is passed it will be abused. We already know that the state unlawfully ignores thousands of access to information requests every year as most state officials are either too lazy to attend to such requests or they believe that citizens do not have a right to information held by the state. With this powerful tool in their hands, heads of government departments and other organs of state will now be able to put formidable legal obstacles in the way of anyone who wishes to expose incompetence, corruption and criminality.
The Bill represents a fundamental attack on our democracy. It is clearly overbroad and hence infringes on the right to receive information as well as the right to freedom of expression. If adopted it will not pass constitutional muster – the definitions of information that could be kept secret and the broad powers given to organs of state to decide for themselves what information can be classified is far too broad and open-ended to be justifiable in terms of the limitation clause. I’ll bet some serious money that if this Bill is passed in its present form, the Constitutional Court will declare it invalid.
But the mere fact that this piece of apartheid-style legislation has been proposed says something about some of the people working in President Jacob Zuma’s security establishment. It makes one wonder whether these people are tapping our phones and intercepting our email. It is all very scary indeed.
I have not read the draft Bill, but this tread reminded me of the way the government tried to prevent the Selebi prosecution. I wonder what would have happened if this Bill was law when Pikoli was suspended. Perhaps Selebi would have still been our top cop, and perhaps Thabo Mbeki would have been in his third term as President.
“National security – like patriotism – can be said to be the last refuge of scoundrels.”
Incidentally ,the professor’s above assertion is a common misperception and misrepresentation of Samuel Johnson’s meaning , according to Robert Conquest ( The Dragons of Expectation , Chapter 2 : Lemming Lore ) :
“More basic may be Orwell’s idea that most people are in some sense “nationalists,” that is, they have and need an emotional allegiance to their country-or against their country. An antipatriotic strain can certainly be noted in one variety of liberalism. Its most frequent symptom is the use of Dr. Johnson’s remark “Patriotism is the last refuge of a scoundrel”-commonly employed, even now, as a sort of put-down by critics of the patriotic. How anyone could imagine that Johnson was against patriotism in its modern sense is most peculiar. If anything, he was almost a chauvinist. In controversy, his main victims were Whigs, about whom he made many offensive remarks. The English poet Winthrop Mackworth Praed writes of a moderate character:
And much be loathed the patriot’s snort, And much he scorned the placeman’s snuffle.
The two factions being in fact the extreme Whigs and Tories. The word “patri¬otism” for Johnson meant, of course, in its then usage, adherence to the most ostentatious Whiggism, what would now be called “leftism.” Macaulay’s treatment, in his essay on Horace Walpole, is the most readily available. Himself, of course, a Whig, Macaulay treats the “patriot” faction with con¬tempt. One should surely treat similarly the subliterate misuse of Johnson.
As to the “renegade” left, it might be argued that the true heroes of the long argument were not so much the committed anti-Communist or “patri¬otic” conservatives. They were of course right, and fully deserve the verdict in their favor as against the pro-Communist liberals. But much of the heat of battle was borne by those within the liberal intelligentsia who not only were not deceived but fought for the truth over years of slander and discour¬agement. We might, in fact, say that there are two sorts of liberal, as there are two sorts of cholesterol, one good and one bad. The difficulty is, or has been, that good liberalism implies a good deal of mental self-control.”
Prof, good posting and analysis indeed. I also agree with you that the Bill if adopted is unlikely to pass the constitutional muster. But one cannot rule out such a possibility. Under the current political environment and the kind of people administering our justice system, anything is possible. I still have trust on Chief Justice Ngcobo though, but under the JZ administration, he will one day crack, especially where it would matter most to the JZ-led ANC government. Otherwise, the ANC government, which led the fight against injustice, could not come up with this apartheid piece of legislation if they did not believe it will find its way through to keep it in power perpetually by hiding away important information about its corrupt and undemocratic practices which, if the citizens become aware of, may decide with their votes to remove it from power. Watch this space.
@Chris
The constitution in section 88(2), under the Term of Office of President, provides that “No person may hold office as President for more than two terms….”. So you are wrong to say had this bill been in force Thabo Mbeki could still be the president for the third term now. This Bill under discussion does not say anything to the effect of extending the term of the president. If your argument is that Mbeki could have used this Bill to suppress the force that ejected him from office, you will still be wrong because amending the constitution, particularly the clause above, could still have been a sin qua non for him or anyone for that matter to serve the third term as the president of the republic.
Communism is founded on lies, and many manifestations of communism repeat the lies over and over again. This draft Bill is straight out of the communist playbook — by sounding and promoting “transparency and accountability in governance”, politicians may classify everything that they do not want to have reported as state secrets! Come now, must South Africa really repeat the history of failed communist countries all over again?
Xitlonyi says:
May 31, 2010 at 14:43 pm
You are perfectly right on the legal position of the president, but you will recall that there were lots of remours on changing s 88 of the Constitution in the months before Polokwane.
George Murray says:
May 31, 2010 at 14:46 pm
Your fears are unfounded, according to Professor de Vos ,
The Bolshevik Communists in the ruling party have recanted their totalitarianism :
Pierre De Vos says:
May 28, 2010 at 14:51 pm
—-In any case I do not agree with your statement that “Bolshevik Communism” is “propounded by many leading lights in the ruling party and SACP” so I cannot really answer a question whose basic premise I think is completely misguided and wrong. The SACP, who used to support the USSR rather blindly, has had a change of heart and is far more embracing of pluralism and democracy than some of the race-nationalists in the ANC who see them as enemies.——
It sounds like the opposite to the “democratic and open society” refered to in the Preamble of the Constitution. The Constitution were adopted to lay the foundations for an open society. With legislation like these the Parliament would lead us per definition back to a closed and secret society.
Remember that book in Apartheid days by Anthony Mathews of the law faculty of the [then] University of Natal: “The darker reaches of government”[1978]?. Seems we’re heading back to those days!
Who has earned the right to debate the ramifications of an ” Open Society ” on this blog?
“According to Soros, all of his political and philanthropic activities are directed towards one goal—fostering what he calls the “open society.” The term was coined in 1932 by the French philosopher Henri Louis Bergson. Bergson defined as “closed” those societies whose moral code is tribal and chiefly concerns the good of the tribe itself. Those societies which base their morality upon “universal” principles, which seek the good of all mankind, Bergson defined as “open.” Bergson himself converted from Judaism to Catholicism on the grounds that Christianity is “open” whereas Judaism is “closed.” Subsequently, the Viennese-born philosopher Karl Popper took Bergson’s concept a step further. Popper argued that even Christianity is insufficiently “open” because it excludes people who do not embrace its beliefs . to be truly “open,” a society must accord equal respect to all beliefs, showing no favoritism toward any particular one . A truly open person never assumes his beliefs are superior to someone else’s and never forgets his own fallibility. One who claims pos¬session of “ultimate truth” is an “enemy” of the open society, wrote Popper.
As a Jew who fled his native Austria to escape the Nazis, Popper brooded over the clash between democratic and totali¬tarian societies which so tragically divided his generation. He came to see totalitarianism, in all its forms, as the final and inevitable result of “closed” thinking, that is, the failure to respect other people’s beliefs. Popper laid out his views in an influential book The Open Society and Its Enemies, published in 1945. It was in the form Popper had given it that George Soros first encoun¬tered the notion of “open” and “closed” societies. Soros studied under Popper at the London School of Economics, and later referred to him as “my spiritual mentor.”1 Soros would later mold his foundation network around Popper’s vision. The Open Society Institute and its global network of Open Society foundations draw their names from Popper’s concept.
Soros’ attempts to apply Popper’s ideas to the real world demonstrate the impracticality of those ideas. In the real world, societies that are unwilling to defend their values are overrun by enemies who lack such inhibitions. There are no open societies in Soros’ globalist sense. Every civilization holds certain assumptions about what sort of behavior is acceptable and unacceptable, and no civilization can stand that is unwilling to enforce its beliefs.
Even a system as tolerant, open and “universal” as American democracy cannot live up to Popper’s ideal. The American founders believed hi self-evident truths. Popper did not. The founders regarded liberty as an absolute right, derived not from government but from “Nature’s God.” The rights enshrined in the Declaration are called “inalienable” precisely because they are seen as God-given. To deny individuals liberty was to violate the “Laws of Nature,” as Jefferson famously wrote in the Declaration of Independence. Popper held no such beliefs. In his view, men were doomed to grope blindly for truth, by trial and error. No matter how hard they searched, they would never find it.”
@Nimrod
You are missing the point of the aphorism “The call to patriotism is the last refuge of the scoundrel”.
In the South African context, it means that when Governments wish for matters to be kept secrret and not to be exposed, they will cite “Not in the national interest” as the reason for concealing the information.
During Apartheid, the Nats did this all the time – what they REALLY meant was that it was not in the national PARTY’s interest to disclose the information.
They also used to excuse the blatant SABC pro-government bias on the basis of “newsworthiness” of the reports on various cabinet ministers.
I listen to SABC radio every morning, and there is NEVER less than 1 cabinet minister who is given a platform to air his views.
No right of reply, no alternative view, no probing questions by the journalists / presenters, some of whom have a poor command of the English language.
Plus ca change, plus la meme chose (the more things change, the more they stay the same).
Clara, apologies up front for any poor French grammar or spelling!
It should be hard to believe that the same people who enacted PAIA want to ram through this garbage. Until one recalls that the state is the defendant in most civil litigation in Pretoria and to what extent the ANC has ignored PAJA, that is.
Does everybody here believe that private intimate information should be protected?
Nimrod: Who has earned the right to debate the ramifications of an ” Open Society” on this blog?
Well, I have! And I believed that anyone who believes in and fights for true Democracy has earned that right. As for the US, for all the world’s criticism its still a great place to live. I know, I’ve lived there for many of my younger years, even under Regan and Bush senior and have two American children, among many. Yes, there was (note the past tense) a fascist accent to government under the Republicans, but life still very good, much of the society and its people amazing. Pity SAfricans don’t align with the good. All this crazy criticism when the US likely remains the hope of the world. And no, I’m not an American. I’m a Canadian South African.
Prof: I agree: very very scary. Bad enough that much of our important justice venue is being sterilized; now if the media freedom goes, that could be the final blow. Anyone who believes otherwise has their head in the sand. Intelligence may well become Stasi without realizing it, possibly already is.
What is it with this government. Are we a Democracy and the honest hope for all South Africans and the Continent of Africa, or are we not? And is sport the euphoric anti-depressant designed to deceive the masses?
“18. 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, except where such possession is for any purpose and in any manner authorised by law, must report such possession and return such record to a member of the South African Police Service or the Agency.”
So if NIA tape recordings mysteriously landed up with an attorney, those tapes must be returned to the NIA and not be used to make representations to the NPA?
This is a plot against our President.
Eish!
Here’s a thought:
The Dunning–Kruger effect is a cognitive bias in which “people reach erroneous conclusions and make unfortunate choices but their incompetence robs them of the metacognitive ability to realize it.” The unskilled therefore suffer from illusory superiority, rating their own ability as above average, much higher than it actually is, while the highly skilled underrate their abilities, suffering from illusory inferiority. This leads to the perverse situation in which less competent people rate their own ability higher than more competent people. It also explains why actual competence may weaken self-confidence: because competent individuals falsely assume that others have an equivalent understanding. “Thus, the miscalibration of the incompetent stems from an error about the self, whereas the miscalibration of the highly competent stems from an error about others.”
“ In the modern world the stupid are cocksure while the intelligent are full of doubt. ”
— Bertrand Russell (from Wikipedia)
The key phrase in my previous posting, in case you missed it Maggs and Fass:
“This leads to the perverse situation in which less competent people rate their own ability higher than more competent people.”
Referring to our present day venue in SA, apologies to the elite.
By the way Maggs, my boer boel is named Maggs, short for Maggie Mae.
Yes, Sirjay, my first thought when I read your quote was Maggs, too. But this is serious subject matter we’re dealing with – lets give it a chance to develop before they start fillibustering.
Agreed Brett: very serious. I can only imagine, poorly, as I’ve never experienced it, what a media black out supported by intelligence, corrupt officials and compromised police would produce.
And yes, I fully believe Intelligence is tracking Proff’s blog. It’s likely why Anonymouse and others are not so vocal with their posts. In my case, Cancer is taking me anyway.
However, Prof, fear not. The truth must be out.
sirjay jonson says:
May 31, 2010 at 20:19 pm
“I can only imagine, poorly, as I’ve never experienced it, what a media black out supported by intelligence, corrupt officials and compromised police would produce.”
Hmmm.
Such things are unimaginable by South Africans too.
A police constable able to shut down any entity for any reason.
Detentions without trials.
No access to lawyers.
State of emergency with draconian laws.
Torture.
Bannings.
Unheard of in this part of the world!
Focus Naidu .
Sirjay Johnson said ” media blackout ” —- .
Nimrod says:
June 1, 2010 at 7:24 am
Oh yeah.
Thanks for reminding me.
Hey Sirjay,
The Weekly Mail as it was then called, never published an issue with the front page blacked out!
Our media were never prevented from publishing news!
We really don’t know what a media black out supported by intelligence, corrupt officials and compromised police would produce.
Maggs Naidu – maggsnaidu@hotmail.com says:
June 1, 2010 at 7:36 am
Well Maggs, if its happenned before then I guess that makes it ok…?
AN Leigh says:
June 1, 2010 at 7:47 am
hahahaha – nice try.
If it happened before!
Firstly as I said to Sirjay, we South Africans on the dark side have no idea what a media black out supported by intelligence, corrupt officials and compromised police would produce.
And then, it’s not going to happen again, ever!
Promises, promises
AN Leigh says:
June 1, 2010 at 8:04 am
It’s a promise.
You can hope all you can hope but in the words of one famous South African : “Never, never, and never again shall it be that this beautiful land will again
experience the oppression of one by another and suffer the indignity of
being the skunk of the world.”
It’s gone. It’s over. It’s finished.
And it’s never coming back!
I supose the Tokoloshe over the river to the north of us is also just a ‘white’ myth to scare ‘the south africans on the dark side’ into ‘acceptable’ norms?
AN Leigh says:
June 1, 2010 at 8:11 am
Huh?
Stop smoking whatever it is that you’re smoking.
It’s making you sound garbled.
Yes, now this country is the laughing-stock of the world, with a President who tells people the ancestors will be in the voting booth with them and make them sick if they do not vote ANC.
Can we get back to the thread ‘Secrecy is the enemy of democracy’?
Perhaps what is being discussed ( ?) here has to do with a Western political system ( the SA consitution ) that has been transplanted into alien, infertile soil .
The South African Consitution , like Christ’s Gospel , if not listened to by SA’s African rulers will wither and die .
( “THE PARABLE OF THE SOWER”
TEXT: Matthew 13:1-23 )
Specifically what Christ sets before us in this parable is the calling we have with regard to the preaching of the Gospel. Christ shows us in this parable that there are two ways in which to listen to the preaching. There are two kinds of listeners. There is, first of all, the listener who rejects the preaching. He is not interested in it and therefore bears no fruit. There is no positive change in his life by means of the preaching. This listener is represented by the three kinds of bad soil mentioned in the parable. But there is also the good listener. He is the one who receives the Word and bears fruit. You can say concerning him, “The preaching makes a difference in his life.”
sirjay jonson says:
May 31, 2010 at 20:23 pm
Hey! I’m not scared of Intelligence – ‘cept for that guy running it though! I’ve been quite busy off-late, and couldn’t be too vocal (if one can call typing ‘vocal’) on the blogsites recently.
I agree with Prof de Vos here – the Bill is overly broad and, in its current form, it will be unconstitutional – ‘cept if the Pres handpicks the CC judges (of which only four need to be appointed from the existing judiciary – and then they want to hear fully-fledged appeals of both fact and law!?) and extends their service and tenure to 70 years to keep out the Moseneke’s from CJ-ship (pave the way for the Hlophe’s).
No-one believe the privacy rights of individuals need to be protected by legislation????
I’m not sure I understand why we need this piece of legislation at all. If we suspend cycism (a difficult task, I agree) for a little while, we might assume there is a legitimate and crucial reason for its enactment. I can’t see how this reason is not covered by the PAIA already – the PAIA allows the State to refuse to make information available where such information constitutes a threat to state security.
In the absence of a legitimate purpose for the new legislation, which is not already covered by existing legislation, it’s difficult to see the bill as anything other than deeply manipulative, corrupt and politically self-serving. Worrying indeed.
http://www.businessday.co.za/articles/Content.aspx?id=113340
Just another step closer to Stalinism …
[...] at all) lies at the heart of why I believe that the proposed Protection of Information Bill – which I have already written about before - is such a fundamentally flawed and even dangerous concoction. This is also why I profoundly [...]
The likes of FIFA are registered in Switzerland.
There might be a lot behind the move.
http://www.big4.com/?page=news_detail&url=deloitte-quietly-moves-hq-from-switzerland-to-uk-on-july-31-2010-joins-ey-1678
Auditors and lawyers set the standard on morals.
We are at their mercy.