Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
26 July 2010

Shock and awe at Parliament Street

Reading through the minutes of the public hearings in Parliament on the Protection of Information Bill (see here, here, here and here), is a bit like reading a novel that deals with the Holocaust in a humoristic manner. One is horrified and shocked by the utter lack of decency, logic, humility, intelligence and any sense of respect for ordinary human beings, while at the same time finding some of it darkly funny and ridiculous.

Much of the discussion and questions at the hearings were completely unrelated to the Bill, suggesting that many of the MP’s had no clue about what the Bill intended to do or would in fact achieve. Many other questions and comments displayed a rather Stalinist view of democracy (in other words, it was distinctly anti-democratic). Remember, the Bill would empower heads of government departments and parastatals to classify any document as secret if that document dealt with the “national interest” and would provide for 15 year jail terms for those who leaked or received such classified information.

Some random examples from the minutes would give a taste of the tenor of the “discussion” (I use that word very generously here):

Mr Motitso said that the community where LCDD worked had stated that they did not need the media to protect them, but only the State. Its citizens voted in the government, which had the duty to protect them.

Ms Sunduza asked Ms Moore if she did not think that the Bill would protect the citizens of South Africa.

Ms Mgabadeli  noted that there was a need to protect information in order to address issues of poverty.

Ms Sunduza noted that in every democracy there was an obligation on the State to protect its people. She commented that there were many concerns that the South African media was transgressing personal and private rights in trying to secure interviews or comment. She asked that CCR comment on allegations that had been published about public figures.

The Chairperson noted his concerns, but also indicated that legal opinions were only opinions until the case was proven

Ms Sunduza noted that Government had a responsibility to ensure that human dignity was maintained, which was the principle underpinning confidentiality of medical records, banking records and the like. She also pointed out that certain cultural practices must be respected; for instance, it would be considered wrong to discuss information about an older member of a community.

Read these minutes and weep about the quality of representation in our beloved Parliament. A few random questions do come to mind though.

Why are we paying the huge salaries of 400 MP’s if so many of them are completely unprepared for an important meeting like this? Why did many MP’s, who posed questions at the hearings, seem not to have a clue what the Bill was actually about? Did they come to the meeting only for the free food (which, admittedly, is usually quite nice)?  

Why did so many committee members not understand that the Bill does not deal with the classification of private medical records, the securing of interviews by journalists, the protection of “cultural practices” like “not discussing information about an older member of the community”, or the criticism of public figures?

Surely one does not need to be a rocket scientist (or even a lawyer) to understand that the classification of documents held by the state would not address the concerns raised by many members during the hearings. One only has to read the Bill – once – to understand that. Did the honourable members of Parliament actually READ the Bill before they asked such stupid and irrelevant questions? The minutes suggests that few of them did.

Second, some members of Parliament have a very scary, paternalistic and anti-democratic view of the world and of our constitutional democracy. The view that the government or the state was the only appropriate body to protect citizens (or that citizens were so frail that we had to be protected from hearing upsetting information – say – about a cabinet Minister awarding tenders to himself) is very reminiscent of a certain kind of oppressive regime where the protection of the elite is equated with the protection of the citizens.

According to this view, ordinary citizens need to be protected from information that could upset us because such information could persuade us to vote for another party. And if that was allowed, well, we would have to ban voting and then it would be a bit more difficult to pretend we live in a democracy. 

In a constitutional democracy, a Constitution is put in place exactly to protect us FROM the state and FROM powerful private individuals and institutions who will abuse their power and will infringe on our rights if we give them half a chance. The media is left to do its work to expose the abuses of the politicians and powerful individuals and institutions.  Thinking that the state is the only legitimate body that should be “allowed” to protect citizens, is like thinking only Catholic Priests should be allowed to protect young boys and girls from being sexually molested.

Third, the notion that state secrecy is necessary to address poverty and to help ordinary citizens, is paternalistic and arrogant. It is also utter nonsense. In a democracy, ordinary citizens are in charge while politicians have to serve us, the people. We can demand things from the state and if the state fails us we can vote for another party and put them in government in the hope they will do better. But we can only do that if we have as much information about what the government of the day is up to as we can process with the limited time and capacity to our disposal.

Where the government starts thinking that it has to keep secrets to alleviate poverty, it really is saying that it wants to keep secret the extent of the poverty and the extent to which the government has failed to address that poverty. In such a world we will never know whether or how the state is stealing our money, why it has negligently caused the deaths of many babies in hospitals and how it has exacerbated poverty by using the taxpayers money to enrich themselves and their friends. Secrecy would mean that we might never get to know about tender rigging, failures to supply essential medicines to hospitals, arms deal crooks and other cock-ups about service delivery. Secrecy would make us poorer, not better off.

Lastly, every single reputable legal scholar who has commented on this Bill has indicated that at least some of its clauses will be declared unconstitutional by the Constitutional Court. Yet, the chairperson blithely rejected these opinions because they are only opinions. What is the use of a Parliamentary hearing if the opinions of experts (who are unanimous about the unconstitutionality of several parts of the Bill) can be dismissed as mere opinion and hence can be ignored. It suggests the public hearings is no more than a charade – a bit like the show trials in Stalins Russia. (I guess it is also merely opinion that the earth is round, that the earth revolves around the sun and that Father Christmas does not exist.)

To address poverty, to empower citizens, to make our democracy work, we need MORE information and LESS secrecy. Not the other way around. The fact that many of the ANC members on this committee (were they carefully selected for their subservience and lack of insight?) think otherwise suggests that they themselves think that they are not really fit to rule the country and that they are incapable of addressing the many and serious challenges we face as a nation. (These challenges include addressing widespread poverty and unemployment, the vast discrepancies between rich and poor, a failing education system, a health system that only works for the upper middle classes, and racism and discrimination that remains rife.)

One get’s the impression that this Bill is really an admission by the government of the day that it needs to hide as much of the facts about governance as it can in order to retain support of the voters.  

Surely there are still decent and level-headed members in the ANC who will put a stop to this anti-democratic and dangerous folly within their midst? Surely some ANC members will realise that the Bill will be bad for the ANC as it will diminish trust in the government it runs (and hence in the ANC), will enhance suspicion about its motives and its honesty amongst ordinary voters, will drive dissent further underground or into illegal activity and will sow the seeds of the complete deligitimisation of the ANC in the long run?

Don’t they see that support for this Bill would be as good as an admission of guilt and failure on the part of the ANC, an admission that the party is incapable of properly running the country and thus needs to hide this fact from the voters in order to remain in power (and to continue drawing the perks of government)? Surely some people have read this Bill and know just how weak and incompetent it makes the ANC look and how bad it will be for the ANC in the long run?

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