As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The Minister of State Security, Siyabonga Cwele, on Friday defended the need for the Protection of Information Bill (also aptly referred to as the Secrecy Bill), and warned that the inclusion of a “public interest defence” would be “tantamount to shredding the Bill” and “simply reckless”. This means the Minister believes that even if it is manifestly in the public interest to publish the content of top secret documents held by the state, the law should punish anyone who so acts in the public interest and publishes such information (say, out of a sense of patriotism and duty to democracy) and that such individuals should be sent to jail for up to 25 years.
According to the Minister, it is necessary to protect the public and – more importantly, one suspects – the government of the day from the publication of documents that relate to the “national security” under any circumstances – even if the publication of the documents would be manifestly in the public interest. This is indeed an extraordinary claim which is difficult to square with an open, accountable and transparent democracy.
What exact information do we need to be protected from that might be so lethal and dangerous that it should not be allowed to be published – even if it is clearly in the public interest to do so? The Minister very helpfully on Friday provided us with a list:
The information the government sought to protect included legitimate national intelligence structures sources; legitimate operational methods, doctrine, facilities and personnel of security structures; sensitive confidences in international relations; and ongoing investigations of state security structures. Also, details of criminal investigations and legitimate police and law enforcement methods; and economic, scientific or technological secrets vital to the country’s stability, security, integrity, and development. We also seek in national security to negate hostile acts of foreign intervention, terrorist and related activities, information peddling, espionage, and unlawful acts against the constitutional order.
This means the Minister believes that if the government decided to invade another country (Iraq, say, or maybe Lesotho) because our President made a secret deal with another head of state promising an invasion (maybe because that head of state had promised in return that its government delegation would vote for South Africa’s host city bid for the Olympics), any documents revealing such information will have to be kept secret.
Now, it would surely be in the public interest for South Africans to know that we have invaded another country to secure the Olympics. After all, our brothers and sisters, our sons and daughters, and our nieces and nephews would have been sent to fight and maybe die in another country and we would have had to fork out billions to pay for all the Olympic facilities (not to speak of the billions in military spending), so we would clearly have an overriding public interest to hear what the hell our government had been up to. However, Minister Cwele believes that it is necessary to pass legislation that would send any journalist to jail who published such information. This seems a bit warped and even scary to me.
Another example: Any documents about Tony Blair-like collusion with a George Bush-like character about rearranging the intelligence (about chemical weapons, say) to try and justify an illegal war would also be prohibited. If the national intelligence service and the President had misled the nation to justify going into a war, this would surely be in the public interest to expose (as happened in the UK and in the USA after the illegal invasion of Iraq), but not in Minister Cwele’s scary and draconian world.
Those pesky BBC journalists, Wikileaks proprietors or even journalists from the New York Times (not a bastion of independent reporting and critical thinking) would all have been sent to very long terms in jail had the Secrecy Bill been in place in the United Kingdom or the USA just after the Iraq war (and none of us would ever have known what a pathological and messianic liar Tony Blair really was, what a scary warmonger and bully Dick Cheney turned into and what a bumbling fool with a chip on his shoulder George W. Bush had been).
In both these examples the public interest to know what our leaders got up to would have far outweighed any concerns about threats to the country’s national security, but according to the Minister the South African law should prohibit publication of such information. In order to ensure that the Secrecy Bill does the job it was intended to do, it should criminalise the publication of some information – even if the publication of the information is manifestly in the public interest and far outweighs any national security concerns.
This argument can really only be sustained if one does not believe in the concept of the public interest at all. I suspect Minister Cwele is one of those officials who believes the public does not have any real interest in knowing the vital facts about whether our democracy is being run in an honest and responsible manner. This makes him a person who seems rather antagonistic towards democracy and accountability and hence not really fit to be a minister in a constitutional democracy (a bit like Tony Blair who said his biggest mistake as Prime Minister was to pass an Access to Information Act).
Which begs the question: why should anyone be sent to prison if they publish any document relating to the national security of the country? Should the people who are supposed to keep secrets about South African troop movements during a time of war, or the names of our spies, or what gifts our President has given to Robert Mugabe to keep him happy in his doddering old age not be trusted to – well – keep these secrets without the help of the law? Surely, if governments think that information must be kept secret, then they should make sure this information is not leaked to journalists or enemy spies. If they cannot even manage to do that, then they are so hopeless and inept that they do not deserve to run the country at all.
Another – perhaps more provocative – question is whether in a time of peace there really is any information that is so vital and important that it could not be published if it is in the public interest to do so. What can be so important that we must be prevented from knowing about it? What information will be so threatening to the life of the nation that it could never be made public? Surely not information about corruption? What else then?
Government officials and politicians love to keep secrets. Secrets are so James Bond and 007, so glamorous and so self-important! Allowing governments to keep secrets also make the jobs of politicians and officials easier because if we do not know what they are doing, we cannot ask awkward questions. Presidents and Prime Ministers would love to keep everything secret because then they will be less likely to be embarrassed and (like Tony Blair) hounded out of office because the public had caught on to the fact that the politician was really a scoundrel with the ethics of second hand car salesman.
Do we really need the state to keep secrets? During peacetime, I can hardly think of any information that needs to be kept secret to protect the life of the nation.
Ok, maybe the names of South African spies who are employed to infiltrate terrorist networks and the names of police agents who must infiltrate organised crime networks might have to be kept secret. We do need spies to protect us from terrorist attacks and the likes of Jackie Selebi (but not much else, I would think, apart from politicians in government and they are not usually spied on). But what other information would be so dangerous that it could not be published? The number of soldiers in our army? Surely not: we are not at war and we pay the salaries of those soldiers so knowing how many soldiers we have in our army is not going to pose any threat to our safety.
What about the number of tanks and fighter jets? Should that be kept secret? In peacetime I can’t imagine why we would want to keep such information secret. Besides, we also paid for these nice phallic-substituting-toys of our politicians and as we are not fighting a war against anyone it cannot possible threaten the life of the nation to have this information published on a website somewhere – and preferably regularly updated.
And what on earth would the technological secrets be that are so important that they have to be hidden from ordinary voters? Maybe I am naive but I cannot think of any secrets relating to technology that should be kept secret. Maybe the technology used to manufacture our passports should be kept secret, but once again, if the government officials cannot keep this secret without the help of a Secrecy Bill, well, then they should be fired.
It seems to me this whole Secrecy Bill is therefore completely unnecessary. It is based on a laughable view of South Africa’s importance (and of course the purported importance of the politicians who get to keep the secrets) and a paranoid fear that somehow the life of our nation would be threatened if perfectly harmless pieces of information are made available to all.
Maybe readers can conjure up pieces of information that are so pivotal that it should never be published – even if it is in the public interest to publish it. Remember, some things might be better to keep secret unless the public interest to publish it so outweigh the need for secrecy that publication is the only option. I would imagine that often the secrecy, rather than the lack of secrecy would threaten national security as it is the secrecy that allows governments to cover up stuff and hide the truth form citizens. It is the secrecy that potentially threatens the very life of our democracy.
In any case, I cannot think of one single piece of information – apart from the information mentioned above – that might be so important that it could not be published if it is manifestly in the public interest to publish it. Can you?BACK TO TOP