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.
We have all heard of the infamous Ministerial Handbook that regulates the benefits and perks of public office bearers, including cabinet ministers, Premiers and MEC’s – the Father Christmas list for politicians in government. Now we are told that neither the President nor the Deputy President is bound by the provisions of the Ministerial Handbook. We are now told that there is a secret Presidential Manual regulating the perks of the President and the Deputy President. Does this Manual actually exist and if so, can it really be said to be top secret?
When the scandal about the wasteful expenditure of more than R200 million of public funds on the private home of President Zuma broke, the Minister of Public Works, Thulas Nxesi issued a statement in which he claimed that the spending was justified by the Ministerial Handbook, stating on 1 October 2012 that:
The Department of Public Works is in terms of the Ministerial Handbook responsible for general maintenance, renovations and upgrading of State-Owned and Private Residences of Members of Cabinet including that of the President. I would like to state categorically that everything that has been approved and carried out at the private residence of the current President is in line with the Ministerial Handbook as far as it relates to security arrangements for private residences of the President. This is also the normal practice for the former presidents of South Africa.
Nxesi also revealed that Nkandla had been declared a National Key Point (although it later emerged that this was done only a year after the upgrade at Nkandla commenced) and that all details about money spent at Nkandla was therefore a state secret. He further claimed that City Press (who broke the story) was illegally in possession of a “top secret document” (later revealed to have been tabled in Parliament) and called for an investigation to determine how the City Press illegally ended up in possession of this document.
After some of us pointed out that the Ministerial Handbook only allows security upgrades at the private residence of a public office bearer like the President to the tune of R100 000, and that Nxesi’s statement was therefore demonstrably false, Nxesi changed his story. Having been caught out in a fib, he had to come up with another explanation for the R200 million upgrade of Nkandla.
On 27 January 2013 he therefore issued another statement, claiming that a secret internal investigation had shown that it was the responsibility of Public Works to upgrade the President’s private home, and that this was regulated by a “Cabinet Decision of 20 August 2003 which is now known as the Policy on Security Measures at Private Residences of the President, Deputy President and former Presidents and Deputy Presidents”. The report produced after the secret internal investigation was itself kept secret, so it is impossible to ascertain whether such a report actually exists and if it exists, whether Nxesi’s representation of what was in this report was accurate or not.
Last week this “cabinet decision” or “policy” invoked by Nxesi after his Ministerial Handbook defence was shown to be false, evolved into a “Presidential Manual”. This was revealed when Deputy President Kgalema Motlanthe’s spokesperson, Thabo Masebe, justified te spending of R2 million of public funds on transport for a private holiday by the Deputy President by invoking a newly revealed “Presidential Manual”. Masebe claimed that the “Presidential Manual” was finalised in 2006, but that the Manual is a confidential document that will not be released like the Ministerial Handbook.
In 2006 the previous Public Protector investigated trip that the then Deputy President, Phumzile Mlambo-Ngcuka, took to the United Arab Emirates and found that there was no finalised policy dealing with who pays for the travel arrangements of President’s and Deputy President’s on private visits. Last year Nxesi did not know about the existence of such a policy or a Manual. This year we are told that the Manual was finalised in 2006 but that it is secret.
A few questions arise from this curious state of affairs. First, does this Presidential Manual actually exist? None of us have ever seen it. Neither have we ever been informed that such a Manual has been finalised. Maybe, like the emperor’s clothes, it is a document that we are asked to pretend to exist to placate the sovereign. When Minister Nxesi first had to defend the Nkandla splurge he invoked the Ministerial Handbook and said nothing about this top secret Presidential Manual. Even people more trusting of politicians than myself would raise an eyebrow.
Second, if it exists, can it override the publicly available Ministerial Handbook? Surely, a secret document not known to anyone cannot override a publicly available document? The Ministerial Handbook incorporates the Executive Members Ethics Code and gives effect to the relevant ethics legislation. Whether a secret cabinet decision (if there was one) can trump a publicly available document giving effect to a parliamentary law is open to question.
Third, on what legal basis is this Presidential Manual being kept secret? Is there a law that authorises the classification of this document (if it exists) as secret? As far as I am aware there is no law authorising secrecy around such a document. It cannot possibly threaten state security to know what perks the President and the Deputy President are entitled to. Anyone holding otherwise really should take their anti-paranoid pills more regularly. As no one has been able to point to a law that would authorise this secrecy, I would assume this claim of secrecy is bogus. If anyone wishes to leak the document to me (maybe to prove that it indeed exists) I will be happy to post it on my Blog, secure in the knowledge that there is no law prohibiting its publication.
Of course, what this demonstrates is just exactly how easily the Secrecy Bill could and almost certainly would be abused to avoid openness, accountability and transparency in government. When you have spent more than R200 million on the personal enrichment of an elected official (who happens to be –temporarily at least – the President of the country), it is understandable that you would abuse the notion of secrecy to try and hide the facts from the public whose money was used to enrich the President. Accountability is usually only invited when you follow the rules.
Secrecy is toxic because it encourages illegality and abuse of power. When the very documents which the public needs to hold the executive accountable is kept secret, it allows the executive to evade accountability and undermines the democratic process. Secrecy is not primarily about the infringement of the media’s right to report what it likes. It is about citizens being robbed of their democratic right to hold the elected government to account and to decide for themselves whether they wish to vote for the governing party to renew its mandate or to lend their vote to an opposition party in the hope of a fresh start. Secrecy robs voters of their right to exercise their vote in a meaningful way.
PS: After this post was published, Presidential Spin Doctor, Mac maharaj claimed on 702 Radio that the Presidential Manual did not exist. See http://www.citypress.co.za/politics/motlanthe-spokesperson-sticks-to-his-guns-on-island-holiday/BACK TO TOP