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.
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.BACK TO TOP