Constitutional Hill

Secrecy on Nkandla unlawful and tacky

News that the government’s own Nkandla Report has been classified as “Top Secret” confirms the fears that the Protection of State Information Bill will be abused to protect President Jacob Zuma and his Cabinet against exposure for corruption and maladministration. But even in terms of the existing legal rules, the classification of the Nkandla Report is legally indefensible and done in terms of a draconian and clearly unconstitutional piece of Apartheid-era legislation.

There must be very few South Africans who believe in their heart of hearts that it was morally justifiable to spend more than R200 million of public funds to upgrade the private residence of President Jacob Zuma. This while the president has three official residences where he can receive foreign guests and where he would be able to hide in the various bunkers underneath these residences if  a toyi-toyi revolution ever engulfed his presidency.

President Jacob Zuma, who usually claims to be part of a leadership collective, refuses to take collective responsibility for this corrupt spending of state funds, passing the buck to hapless cabinet ministers and officials instead. President Zuma is only collectively responsible when he has nothing to hide, it seems. And now his Minister of State Security has classified the Nkandla Report as “Top Secret” in terms of the “Minimum Information Security Standards” (MISS), a document without any legal standing, which was adopted by the Cabinet in 1996.

This document was seemingly drafted to give effect to the provisions of the Protection of Information Act of 1982, which was passed by the PW Botha regime at the height of Apartheid when his regime became increasingly paranoid about “national security” and the secret service started playing an ever-increasing shadowy role in ruling the country and turning it into a national security state.

The MISS document allows information to be classified as “Top Secret” if the information contained in it “can be used by malicious/opposing/hostile elements to neutralise the objectives and functions of institutions and/or state”. As the MISS document explains, this means information can be classified as “Top Secret”:

when the compromise of information results in: the functions of a state and/or institution being brought to a halt by disciplinary measures, sanctions, boycotts or mass action; the severing of relations between states; and a declaration of war.

Unless the Minister of State Security believes that South African voters will be so outraged by the content of the Nkandla Report that they will rise up against the government and try to overthrow it if they find out what is in the Report, it is clear that (even in terms of the MISS document itself) the Nkandla Report was wrongly classified as “Top Secret”. It was obviously so wrongly classified in order to hide corruption and the manner in which the president was enriched by the upgrading of his private home.

Surely, no one believes making the Report public will lead to a declaration of war, to sanctions or boycotts or the severing of relations between South Africa and a foreign state? This means the Minister of State Security has shamelessly abused his (misconstrued) powers to protect the president and the government he leads from the embarrassing details in the Nkandla Report.

But the classification may, in fact, be meaningless and anyone who gains access to the document may very well be able to publish its content without worrying too much that he or she is breaking the law. This is because a cabinet document cannot create criminal offences. Only a law, duly passed by Parliament, can create criminal offences. In a democracy the Cabinet cannot issue decrees that criminalise the behaviour of its citizens – that is only possible in autocratic states.

It is true that the draconian Apartheid-era Protection of Information Act is still on the statute books until such time as the Secrecy Bill comes into force. It is also true that this Act criminalises leaking of information to a “foreign State” or “hostile organisation” made at a prohibited place (like a military installation). It is also true that this Act prohibits anyone from receiving information relating to “the defence of the Republic, any military matter, any security matter or the prevention or combating of terrorism”.

A Security matter is defined in relation to various pieces of legislation, but the National Key Points Act is not mentioned in the legislation at all. This means that a document on the spending of more than R200 million of public funds on the upgrade of a private residence declared a National Key Point probably does not fall within the scope of this definition of a “security matter”. Given the fact that our courts will interpret such sweeping and draconian legislation as narrowly as possible, I cannot see it finding the Nkandla Report to fall within the definition of a “security matter” for the purposes of this Act.

If all Key Points fell within the ambit of what constituted “security matters”, almost all reporting on Nkandla so far would have been in contravention of the Protection of Information Act and most of us would have been prosecuted for breaching this old Apartheid law. As no one has been prosecuted, this must mean that even the spies do not believe that the Nkandla Report is covered by this section of the old Apartheid-era law.

In any case, it is clear that a law that criminalises possession of information but leaves it to the cabinet to draft guidelines on the classification of this information would never pass constitutional muster. This is because such a law would delegate plenary law making powers (in fact, the power to create criminal offences) to the Cabinet – something that is in direct conflict with the separation of powers doctrine and therefore clearly in breach of the Constitution.

This means that in as far as MISS purports to prohibit the sharing of information classified as secret or top secret, this document is clearly unconstitutional. Anyone can leak any document classified as “Top Secret” because there is actually no binding law (passed by Parliament) that sets out which documents may be classified as “Top Secret”. The MISS therefore does not create any criminal sanctions for the possession or distribution of so called “Top Secret” documents.

But wait, section 4 of the Protection of Information Act further prohibits any person from possessing any document “which has been entrusted in confidence to him by any person holding office under the government”. This means that a person who receives any classified document or any other confidential document from any person in government (no matter how corruptly classified or whether it was classified in terms of the MISS document and no matter whether there is any reason for it to be confidential) commits a criminal offence.

This prohibition is extremely broad and far-reaching and clearly infringes on the right to freedom of expression and the right to access to information enshrined in our Constitution. A further subsection states that a person who receives such information is liable for a prison sentence of up to 10 years. This means that if a government official provides me with a copy of a letter requesting the hiring of a tent for a social function and does so “in confidence” I am committing a criminal offence and can be sent to prison for 10 years.

In other words, this is a truly draconian provision in a truly draconian law. The fact that it is still on the books 19 years after the demise of the draconian Apartheid state, serves as a serious indictment of our present government and its willingness to use evil Apartheid laws to hide corruption and maladministration.

The fact that it is being invoked to protect President Zuma from exposure because he allowed the state to spend more than R200 million to upgrade his private home is just plain tacky.

In any case, it must be clear that because many of the sections in this draconian Apartheid-era piece of legislation is overbroad, it would never pass constitutional muster under the limitation clause and is therefore unconstitutional – as sure as the sun rises in the East and sets in the West.

Given the fact that the classification of the Nkandla Report cannot be backed up by legitimate criminal sanction and is based on unconstitutional Apartheid-era legislation, I will not be surprised if the Report is leaked to the media and published by somebody in the media. If I were a potential leaker I would wait until about two weeks before the next election until I put this Report in the public domain to ensure maximum embarrassment to those who are abusing this draconian law to avoid accountability. If I were the Minister of State Security I would rather declassify the document immediately and publish it in order to prevent severe embarrassment to President Zuma and his government shortly before the election.

Just some friendly advice.

  • John Roberts

    Sweet fuckall will happen. We will never see the report. Ever.

  • Brett Nortje – The ANC are backward! Completely out of place in the 21st Century….

    WHat is with all the cops at the hospital? They are puzzled by their situation so they start searching cars?

    Think that is going to stop people connecting the (i)d(i)ots – that the world has been systematically lied to about former President Mandela’s condition for two weeks after he almost died next to the highway??

  • http://www.ozoneblue.co.za/ Ozoneblue

    John Roberts
    June 25, 2013 at 7:39 am

    Something will happen. They will find a way to blame it on the enemy – WHITE MALES.

  • Mikhail Dworkin Fassbinder

    I have struggled my whole life for openness, transparency and accountability. Yet I have some sympathy with the classification of the Nkandla report. If released, it would be exploited by the DA and the LIBERAL media as another excuse to bash Mr Zuma. These forces forget that Mr Zuma was elected by 66% of our people.

    Thanks.

  • John Roberts

    The news in Australia says Mandela has effectively been brain-dead for days. Just waiting for the best time to announce it I think.

  • Zoo Keeper

    Professor.

    i think your use of the word “tacky” is a little bit of an understatement.

    What we have is a clear exercise of power under an law which is unconstitutional to protect an individual from public oversight.

    This is not tacky, it is a constitutional crisis.

    What is CASAC going to do about it?

  • Brett Nortje – The ANC are backward! Completely out of place in the 21st Century….

    What they did about the constitutional crisis starring one Michael Hulley and some tapes?

  • http://www.ozoneblue.co.za/ Ozoneblue

    John Roberts
    June 25, 2013 at 12:06 pm

    “The news in Australia says Mandela has effectively been brain-dead for days.”

    Are you sure it is not just a general comment on contemporary ANC leadership? I would say years are more like it.

  • Gwebecimele
  • Zoo Keeper

    Ah Brett, I should have guessed.

    CASAC will do sweet fuck all.

    The Professor will then blame white, heterosexual males for the collapse of the education system, re-militarization of the police, blue-light convoys, bad cold fronts, etc.

    And all will be well with the world because the fact that JZ spent R200m on himself is directly because of the white heterosexual male thing.

  • John Roberts

    @Ozoneblue
    June 25, 2013 at 13:43 pm

    If that were a Tweet I would have favourited it !

  • joeslis

    @ MDF

    “These forces forget that Mr Zuma was elected by 66% of our people”

    Pffft, Gospodine F! Mr Zuma was elected by a mere handful of (possibly brain-dead) ANC cronies. Luckily for Mr Zuma, “our people” merely get to vote for a political party.

  • Maggs Naidu – Zuma knows what he is doing! (maggsnaidu@hotmail.com)

    Perhaps it’s time to seriously consider a law make it illegal to disrespect President Zuma.

    The law should also make it compulsory to admire, revere, pay homage, cherish … the president.

    Than Minister Nzimande is sooooooo smart!

  • Zulani

    Extract from speech by Obed Bapela, Chairperson of the ANC NEC Subcommittee on International Relations and also the Deputy Minister in the Presidency:

    “Travelling on the continent is also an eye opener for most of the time I meet one group that is the envy and the pride and they are Afrikaners in the engineering, infrastructure, construction and telecommunication. You find them in the unthinkable places on the continent. The ANC Strategy and Tactics of 2007 indicated the Afrikaners as the fastest growing wealthiest people in SA overtaking other national groups. They do this by taking risks on the continent and they are winning. Can we take a lesson from them and go out there and grab opportunities as Africans, Indians and Coloured in particular to take up the opportunities because SA will become the biggest beneficiary in investment and trade.”

  • http://www.gavinyounge.com Gavin Younge

    R206 million on his retirement pad? Seems like poo in all our departure lounges …

  • Zulani

    ‘The formulation and implementation of effective and impactful policies is fundamental to addressing South Africa’s complex economic, socio-economic and political challenges…’ – Mills Soko, Policy Director at Agang

  • http://www.ozoneblue.co.za/ Ozoneblue

    Zulani
    June 25, 2013 at 17:53 pm

    “Travelling on the continent is also an eye opener for most of the time I meet one group that is the envy and the pride and they are Afrikaners in the engineering, infrastructure, construction and telecommunication. You find them in the unthinkable places on the continent.”

    That must be mostly because they are not welcome in their land of birth any more.

    “Minister says significant levels of demographic and gender imbalance are still embedded in the aviation sector.”

    http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=385949&sn=Detail&pid=71616

    As I said the racist logic of the NDR demands close to ZERO quotas for whites in the next 30 to 3000 years.

  • Gwebecimele

    http://www.fin24.com/Companies/Financial-Services/R33-claimed-from-golf-icon-Gary-Player-20130625

    Hier kom kaka!!!! Kenny andJulius are about to be the cleanest amongst us.

  • http://www.ozoneblue.co.za/ Ozoneblue

    Gwebecimele
    June 25, 2013 at 21:17 pm

    “Hier kom kaka!!!! Kenny andJulius are about to be the cleanest amongst us.”

    Speak for yourself. If you want to be corrupt and you adore a corrupt leader do so, but do not try to taint everybody now with the same brush so as to justify your own moral bankruptcy.

  • http://www.ozoneblue.co.za/ Ozoneblue

    More good news for all the Colonialists of a Special Type and all the FOREIGN NATIONALS.

    “The police officers, allege some of the immigrants, yelled that they only respect Nelson Mandela, but once he is dead they will make sure the immigrants go back to their countries.”

    http://groundup.org.za/content/immigrants-accuse-cops-abuse-their-businesses-are-destroyed

    At is that Ubuntu, that African mentality back with us again. Long live the the NDR, the identity politics and the nonracial, non-sexist South Africa.

  • Gwebecimele

    OB

    You might just get a home visit from the KAK BRIGADE

  • Gwebecimele
  • magabangeljubane

    Gwebecimele says:
    June 26, 2013 at 14:15 pm

    Must be another example of the “shockingly bad” legal advice that Pierre always talks about.

  • Maggs Naidu – Zuma knows what he is doing! (maggsnaidu@hotmail.com)

    John Roberts
    June 25, 2013 at 12:06 pm

    Well JR,

    You called it!

    Digger arrives at Mandela gravesite

    http://www.news24.com/SouthAfrica/News/Digger-arrives-at-Mandela-gravesite-20130626

    p.s. Clear your attic to make space for lots of fleeing racists.

  • Brett Nortje – The ANC are backward! Completely out of place in the 21st Century….

    Maggs Naidu – Zuma knows what he is doing! (maggsnaidu@hotmail.com) says:
    June 26, 2013 at 21:14 pm

    No way! You go home – to India!

  • Mikhail Dworkin Fassbinder

    @ Gwebe (to OB)

    “You might just get a home visit from the KAK BRIGADE”

    Gwebe and OB, I am already accumulating FAECES in plastic 12 liter bottles, to dump on Mr Obama, as a gesture of our peoples’ dismay at his imperialistic foreign policy. Can you help?

    Thanks.

  • http://www.ozoneblue.co.za ozoneblue

    @mfd

    Human faeces is not enough. Mr Obama aught to be indicted for crimes against humanity, along with all the gay white liberals that studied at Harvard during the Struggle and has not even managed one single constitutional blog entry regarding the inhumane torture of white muslims at Guatanama Bay or the barbaric massacre of Indian looking foreign nationals right on their doorstep.

  • Maggs Naidu – Zuma knows what he is doing! (maggsnaidu@hotmail.com)

    Mikhail Dworkin Fassbinder
    June 26, 2013 at 23:33 pm

    Dworky,

    So you’ve been collecting faeces in bottles.

    Government has been disposing of theirs – ON OUR CONSTITUTION!

    Min information what what!

  • Maggs Naidu – Zuma knows what he is doing! (maggsnaidu@hotmail.com)

    Brett Nortje – The ANC are backward! Completely out of place in the 21st Century….
    June 26, 2013 at 22:05 pm

    Hey Brett,

    No need to be RACIST even if it’s genetic!

    In India we have a saying “When Mandela dies, WHITE people are gonna run to Australia!”

    … Nelson Mandela’s life support machine was shut down and he has died in the hospital aged 94. According to the source, the iconic Mandela died last night while he was still in the hospital for the recurring lung infection that left him in critical condition for several days.

    Authorities have confirmed that Nelson Mandela has been taken off his life support machine, adding fuel to the speculation that he had died. Because of this, the rumor has been spreading that Nelson Mandela died last night and that the government and his family have “kept a lid” on the news because of American President Obama’s upcoming trip to South Africa. Obviously, the president’s visit will be overshadowed by the announcement of the Nobel Prize winning Mandela.”

    http://guardianlv.com/2013/06/nelson-mandela-life-support-shut-down-as-respected-humanitarian-dies-age-94/

  • Brett Nortje – The ANC are backward! Completely out of place in the 21st Century….

    Eish, Maggs, I hope the ANC isn’t messing up this one too – that would be the final insult to his memory.

  • Maggs Naidu – Zuma knows what he is doing! (maggsnaidu@hotmail.com)

    Some interesting stuff going on here!

    So the report cannot be classified secret even in terms of the Hit and MISS thingy?

    Cwele’s ministry said in a statement that under the current classification regime — the minimum information security standards (MISS) policy — a document could only be classified by its author.

    “As the report is authored by the task team and owned by the commissioning minister of public works, the minister of state security cannot classify or de-classify it or issue instructions to this effect.”

    http://www.timeslive.co.za/politics/2013/07/01/cwele-denies-classifying-nkandla-report