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.
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.
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.BACK TO TOP