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 United States of America’s obsession with national security – and the security of its President – is easy to lampoon. Getting through airport security in the US can make you feel as if you have landed in the middle of a Jason Bourne movie. When its President visits a foreign country, a convoy of special bulletproof cars is flown in to transport the leader and his entourage. At a recent talk by President Barack Obama at the University of Cape Town we had to stand in a queue for hours to get through the excessive security check points.
Yet, the White House – the US President’s official home and office – offers self- guided as well as virtual tours to members of the public. Its website contains a floor plan of some parts of the White House. Of course some parts of the White House remain off limits to the public for security reasons. But even the security-obsessed Americans see no threat to their national security or to the security of their President when details of his home are made public.
It is difficult to see why South Africans – who are supposed to be a little less paranoid and arrogant than the world’s largest super power – are not entitled to know a little bit more about the private house of the President whose cost they so generously contributed to.
Even if that house is a private residence and upgrades just happened to have been justified on “security” grounds, knowing a few details about the house is not going to threaten the security of the President. And, to claim that it will endanger national security is beyond laughable. To use apartheid era legislation that embodies the spirit and ethos of PW Botha and his “state-of-emergency” government to do so, is beyond words.
As we have actually paid for most of what is now widely known as Nkandla, it would be nice to know how many rooms were added to the President’s private enclave to enhance “national security”; how many soccer fields were built to keep our president safe from attack by unscrupulous terrorists; how many tuck shops erected to serve our vital national security interests; how many other luxury fittings paid for by taxpayers to ensure that South Africa’s enemies will not be able to threaten our collective security as a nation.
Police Minister Nathi Mthethwa and Publics Works Minister Thulas Nxesi seem to hold a slightly different view. Last week they approached the court to stop the release of the Public Protector’s Report into the publicly funded upgrade of President Zuma’s private house because they claimed one week was not sufficient for their army of lawyers to read a 357-page report and to identify any aspects of it that revealed facts about the security arrangements at Nkandla.
At first blush, this may seem surprising, to say the least. I have, of course, not seen the report, but would be surprised if the report actually revealed much about the security arrangements at Nkandla. Would it really reveal information such as details of the exact location of the now not-so-secret bunker; plans for the evacuation of the premises in case of an attack; the number and positioning of guards on duty to protect the President and the secret codes to activate the secure telephone line. And if it did, how long could it take to identify these on the report pages?
Yet, the Ministers seem to believe the very life of the nation is being threatened by this report about the use of public funds to upgrade the private house of a person who will again be a private citizen in no less than six years time.
The release of the Public Protector’s provisional report, warned Mthethwa “without prior authorisation of the [security cluster] is unlawful and carries with it a criminal penalty…. If the provisional report is released in its current form as intended by the [Public Protector], the [security cluster] will suffer irreparable harm and the safety of the president will be severely compromised.”
Nxesi was even more adamant: “We reserve our right to take the necessary legal actions to preserve the security of the state as well as part of the national key points.”
But if one peruses the legal basis for these claims one soon realizes that the legislative sections invoked to justify this intimidation of the Public Protector has very little to do with either national security or the security of the President and everything to do with using draconian apartheid era legislation to suppress the truth.
This is also why the state requires more time to censor the report: it has nothing to do with national security and everything to do with wanting to determine exactly which phrases in the report fall foul of apartheid era censorship provisions in the National Key Points Act and the Protection of Information Act. But as I will presently show, these provisions are so broad that they virtually invite the state to censor all the embarrassing bits from the Nkandla Report.
In their application to stop the release of the report to other affected parties, the true reason for the approach to the court becomes evident. They are asking the court not only to give them more time to tell the Public Protector which parts of the Report she needs to censor. They also ask the court to require the Public Protector to submit a revised (censored) Report to the security cluster “for the purposes of determining whether or not the security concerns raised by the” security cluster Ministers have been attended to. They also seek leave to approach the court to stop the publishing of the Report if their alleged security concerns had not been addressed (in other words, if the Report had not been censored as instructed by them).
In effect, the Ministers are asking the court to give them the right to decide which aspects of the Report are related to security (it is unclear whether they are referring to “national security” or the personal security of the President) and to provide them with a veto right that would allow them to insist on the censoring of all the aspects of the Report they believe the apartheid era legislation gives them the right to censor – regardless of whether these aspects relate in any way to the security of the President or to national security.
In his affidavit, Minister Mthetwha confirms this when he claims that the Public Protector is obliged to give them reasonable opportunity to identify aspects of the Report “which must be omitted from her provisional report due to the breach of state security and the compromise to the security of the President”. He claims the report contains classified, top secret and confidential information that would compromise the security of the state if released to anybody else.
But it is in the correspondence between the Public Protector and the Ministers of Public Works in which the cat is let out of the bag. Minister Nxesi claims that the report must be censored because it contains information in breach of section 4 of the National Key Points Act and section 4 of the Protection of Information Act (both pieces of legislation passed during the PW Botha era).
It is not clear why the Minister refers to section 4 of the National Key Points Act. This section states that the Minister may order any person to furnish him with any information at his or her disposal relating to or in connection with a National Key Point. A person who makes known such information to anyone else is guilty of an offense.
Now unless the Minister ordered his officials to furnish him with such information and relied on section 4 of the National Key Points Act when he did this, or unless the Minister ordered the President to furnish him with such information in terms of the section, section 4 of the Act cannot apply.
Surely, it is highly unlikely that the information provided to the Public Protector was gathered by using section 4 of the National Key Points Act? Most of the information must surely already have been available to the Minster through the officials in his Department? And would the Minister really formally instruct the President – his boss – to hand over information about Nkandla?
But maybe the Minister will provide the public (or at least the court) with written proof that the information he provided to the Public Protector was indeed formally gathered in this fashion. Until then, I will remain slightly skeptical about the claims made by the Minister in this regard.
In any event, it is telling that the Minister is invoking this bizarrely overbroad and clearly unconstitutional provision of an apartheid era piece of legislation to claim that the Public Protector’s Report contains information that could threaten the security of the state or of the President. The fact that the section does not merely prohibit the release of information that actually threatens the security of the state or that of the owner of a National Key Point, but any information that the Minister had ordered must be provided, suggests that the Act is being used to cover up the Nkandla scandal.
Section 4 of the Key Points Act can be used by the Minister to order somebody to provide information about any trivial aspect about a building – how many toilet rolls are being used in that building; how many rose bushes have been planted in the garden; what is the colour of the walls; what bathroom fittings can be found in the guest bedroom; how much water is being used in the building – and if this information is provided to the Minister and is then made public by anyone else this is in breach of the Key Points Act on the basis that it threatens national security – even if the information clearly does not threaten national security at all.
This means if the Minister had been devious enough and had formally used section 4 of the National Key Points Act to “order” officials and the President to provide him with all the information about Nkandla needed by the Public Protector, he would (with the stroke of a pen) have drawn a veil of secrecy over the whole Nkandla scandal – courtesy of PW Botha.
Section 4 of the Protection of Information Act reveals the same scope for abuse to cover up whatever the government wants to be covered up. It states, inter alia, that any person who has in his or her possession a document “kept, used, made or obtained in a prohibited place” who then discloses such document is guilty of an offence. The President, in terms of section 14 of the Act, can declare any place a prohibited place. One assumes the place where the Nkandla documents have been kept has been declared a prohibited place.
This means, once again that the claim made is not necessarily that the Nkandla Report actually reveals anything that actually would threaten the security of the state or that of the President. Instead, the claim seems to be that the Report contains information, regardless of whether it actually threatens the security of the state or of the President, which apartheid era legislation allows the government to censor for any reason they please.
I would speculate the reason why the state’s lawyers need so much time to study the draft Nkandla Report is so that they could make effective use of these two apartheid era legal provisions to force the Public Protector to censor her Report in order to protect (shall we call him) Number One from political embarrassment.BACK TO TOP