BEYOND APARTHEID : THE NEW NATIONALISTS AND THE PROTECTION OF STATE INFORMATION BILL

From corruption in high places to increasing authoritarianism, the ANC government has been moving ever closer to the Nationalist Party’s apartheid state. Even at the height of repression, however, when that government was fighting what it termed a Total Onslaught, there was space for those who dared to report on the state’s involvement in township violence to do so. If the Protection of Sate Information bill is passed in its present form reports about such nefarious state activities could well be classified in the name of vaguely defined ‘national security’. To make matters worse, democracy has not yet taken strong root in South Africa, and there is a conspicuous overlap between the state and the ANC. Driving the bill through
parliament is a governing party paying only lip service to transparency, whose
preoccupation with secrecy verges on paranoia.

This legislation is a betrayal of the Constitution’s commitment to human rights. The impression is that much has been cut and pasted from legislation elsewhere, such as Canada. Unlike legislation in established democracies, however, it is short on specifics, and fails to provide adequate checks and balances, such as the public interest defence included in the Canadian legislation.

Despite improvements relative to the first draft, the current version of the bill still places far too much power in the hands of a small group of political appointees, especially the Minister of State Security. This agency, it should be noted, exists by virtue of a 2009 Presidential Proclamation, and the relevant legislation is not yet before parliament. Apart from being informed that it includes the different arms of what was previously known as National Intelligence Agency the structure of the entity being given this awesome power is not known.

Although classification and declassification now applies only to the security services (intelligence, police, military) and this power has been removed from other organs of state, the Minister of State Security may override this provision. It is these organs of state at different levels of government which will formulate policies about what information in their departments should be classified. The context in which these policies are formulated is one in which political deployment is rife, as is abuse of power and failure to disclose financial interests. It is an environment in which potential whistle-blowers often fear for their lives.

It is the heads of departments in the security services (defined in chapter 11 of the Constitution) who will take the decisions about classification, or delegate others to do so. Consider the unedifying conduct of some of these heads. Former Commissioner of SAPS Selebi has been found guilty of corruption and defeating the ends of justice.  His successor has been suspended following a damning report by the Public Protector. That the intelligence arm of the state is used to serve ANC factions is clear from a secret report about a supposed plot to unseat President Zuma, which had been declassified by Crime Intelligence head Richard Mdluli. Mdluli claims that his suspension from the police, and the criminal charges levelled against him, are linked to his ‘political enemies’ in the police.  One of those named in this ‘plot’ report, Minister Sexwale, reported fearing for his life. There have also been reports of politically-linked conflict between the Minister of State Security and his top staff, especially Gibson Njenje, head of the State Security Agency’s domestic arm. Njenje is alleged to have placed the Gupta family, which is known to be close to President Zuma, under surveillance.

Consider the social context in which these faction-ridden departments will make the classification decisions. There has been re-militarisation of the police, and attempts to militarise Home Affairs by recruiting SANDF members. It is already often difficult to access information held by the state, even when using the Promotion of Access to Information Act. From the Presidency down, there are complaints about the courts infringing on decisions by the executive – despite their Constitutional imperative to do so. That the media is a thorn in the government’s flesh is obvious from its utterances and defamation actions, and its harassment of journalists. Abuse of power by the state in illicit interception of communications is also alleged.
Intimidation is ubiquitous, and those wishing to expose corruption usually fear for their lives; they often rely on journalists and human rights defenders to do the follow up on corruption allegations and protect their identities.

Increasingly, the movements of the executive, and government ministers, are shrouded in secrecy, with the failure to disclose details of travel or accommodation being justified on the grounds of threats to security.  Bodyguards and blue light escorts are the order of the day for functionaries at all levels of government. In detailing the penalties for possession or disclosure of classified information the bill makes constant reference to its beneficial value to a foreign state. The public could be forgiven for assuming that the country is facing some sort of external threat.

However, according to the Head of Communications in the Ministry of State Security, Brian Dube, in a  media release dated 2 June 2011, there are’ no
discernable threats to the constitutional order’. On the same day, his minister, Cwele, during his budget vote, waxed lyrical about ‘prevailing peace and security’, and the country being ‘stable and secure’.

Dube’s media release was headed ‘The nation safe’. Minister Cwele’s recent diatribe against those opposing his infamous bill – accusing them of spying for foreign governments – begs the question about whether the nation is safe from its government. The inescapable conclusion is that this bill is aimed at South Africans, including within the ANC, who are critical of those who wield power.

By international standards, the penalties proposed for various categories of offences are outrageously high – especially given the vague wording of the bill and the absence of a public interest defence. In the UK, for example, there is a maximum of fourteen years imprisonment for supplying information to the enemy, with a recent amendment to the Official Secrets Act stipulating a fine and/or two years imprisonment for disclosure of security-related information.  The penalties outlined in the secrecy bill reveal the government’s twisted priorities : Four policemen who tortured a man to death, and then actively defeated the ends of justice, recently walked free after approximately four years in prison, yet those in possession of classified information face up to twenty five years imprisonment.

Instead of following the direction of democratic countries, South Africa,
it seems, has chosen to follow the route of countries which do not subscribe to its own constitutional values – such as Malaysia, which stands accused of
classifying documents without good reason, and using its Official Secrets Act to stifle dissent and reduce transparency. Indeed, as Nobel laureate Nadine
Gordimer has so aptly put it, this bill is taking South Arica beyond apartheid

 

Main References

Republic of South Africa: Protection of State Information Bill
(updated, as at 22 November 2011)

Press reports from Mail & Guardian, Sunday Times, Sunday Tribune, City Press, Times,Witness, Mercury, Daily News

Internet sources include www.justice.gc.ca (Security of Information
Act), www.legislation.gov.uk(Official Secrets Act) Act), www.bbc.co.uk/onthisday….(Secrets Act gags whistleblowers)  www.en.wikipedia.wik/official_secrets_act

Media release Ministry State Security dated 2 June 2011 and www.ssa.gov.za/Minister_Budget……(Minister Cwele’s budget speech 2 June 2011)

 

 

FORENSIC PATHOLOGY, THE DEPARTMENT OF HEALTH AND THE MORTUARY MAFIA

In a severe blow to the training of doctors, and to the cause of justice  in KZN, Prof Steve Naidoo, Chief Specialist (Forensic Pathology) and head of Forensic Medicine at the Nelson R Mandela Medical School in Durban, has resigned from his university post. He is unable to effectively carry on teaching undergraduate medical students and postgraduate registrars (trainee specialists) because of the untenable situation at the Magwaza Maphalala (Gale Street)mortuary, which is a consequence of the failure of the Department of Health (DOH) to deal with the mortuary mafia. While he has not been personally threatened – although there have been attempts to sabotage his work – Naidoo has been warned by concerned insiders that he may jeopardise his personal safety by continuing to work there. Naidoo’s resignation is a symptom of the terminal decline into which mortuary services have fallen since being taken over by the Department of Health from the SAPS.

In terms of breadth of experience Prof Naidoo is the province’s leading forensic pathologist. He enjoys international recognition, and has extensive experience in the field of forensic pathology applied to human rights, including his work with the TRC in South Africa and with the United Nations in the identification of genocide victims in Bosnia, Croatia and Kosovo. He is currently Chair of the Academic Sub-Committee of the Department of Health’s National Forensic Pathology Service Committee. He is also Chair of the continent-wide African Network of Forensic Medicine and a member of the Forensic Advisory Group of the International Committee of the Red Cross  (ICRC. There is a dire shortage of forensically trained doctors in the province, and Naidoo is the seventh to have left the service in the past two years. The former Chief Specialist of the KZN DOH Forensic Services also left the service following harassment by mortuary workers and lack of support from provincial management. The blame for this state of affairs lies squarely with the MEC and staff of the Provincial Department of Health, who have apparently taken the side of unqualified, ill-disciplined mortuary staff (some of whom are guilty of criminal activities) against highly qualified professionals, who they have continued to undermine. A perceived manipulation of the health department’s management by the industrial union/s representing the mortuary technical workers needs to be investigated.

Magwaza Maphalala Street mortuary

Criminal activities by staff at this and other mortuaries hit the headlines in 2010 and early 2011 when, during illegal strikes and go-slows (they are classified as emergency workers) workers sabotaged operations by switching off fridges, muddling bodies, hiding dissection tools or gluing shut cupboards in which they were kept. Their grievances stemmed from not being paid on the same scale as workers elsewhere in the country – the reason being that most have no real qualifications for the jobs they are doing. The Department of Health is, in fact, breaking the law by employing people without the requisite qualifications in the positions they occupy (and there is no shortage of properly qualified personnel). These mortuary workers have now been given the increases they were demanding, and to which they, lacking qualifications, are not entitled. If it is true that mortuary technicians are now paid Level 7 salaries it is an insult to those health professionals (e.g. nurses, paramedics) with degrees and diplomas who receive a Level 6 salary. The current go-slow or strike at Phoenix morgue this past week is again evidence of the attitude of morgue technical staff who are prepared to subject the community to such inconvenience and travail where the next-of-kin cannot receive the bodies of loved ones for funerals, now on the basis that they have not been paid for their overtime claims.

Even when they were not striking the workers behave in a generally ill-disciplined manner – arriving late for work, coming and going as they pleased, and refusing to take instructions from doctors. Proper procedures for the identification and release of bodies are not necessarily observed, facilitating irregular disposal of unclaimed bodies and opening the doors to insurance fraud, and possibly to illegal trade in body parts. National protocols relating to the treatment of unidentified bodies are not adhered to. Appeals to the DOH for errant workers to be disciplined have fallen on deaf ears. Given the lack of proper management, and the failure of the DOH to ensure adequate maintenance, there are serious concerns about health and safety levels to which those who work in the mortuary – including trainee specialists and medical students – are exposed. The arrogance of the workers has extended to their objecting to the teaching of medical students at the mortuary. What the University of KZN is doing about this appalling state of affairs, given the crucial repercussions for the training of doctors, is unclear. The HPCSA has already noted the inadequate exposure of undergraduate medical students at UKZN to autopsies. Attempts by Prof Naidoo to insist on acceptable standards at the mortuary had led to the staff claiming that he is ‘harassing’ them. He has noted that some of the goings-on could amount to a violation of human rights of not only families of the deceased and members of the public in most cases, but also of those innocent and hardworking staff members belonging to the health establishment and police.

For the past few years the DOH had been made aware of the conditions at the mortuary, including the contents of a detailed internal audit done in January 2008, and have been apprised about what steps are necessary to rectify matters. Their response has been for from instructive, for it suggests contempt for professional staff and support of the ill-disciplined workers. For example, when it spoke of ‘re-structuring’ it was the mortuary technicians, not the doctors, who were consulted. In November 2009 a memo to the Health Dept by the mortuary staff questioned Prof Naidoo’s position, claiming he had no authority over them because he was employed on university conditions alone. However, the position he occupies is, in fact, a joint University of KZN/Department of Health one. In June 2010 Naidoo was effectively removed from exercising any control over the mortuary and medical functions by a senior employee who has since left the DOH under a cloud. He was not afforded the courtesy of being informed about this move, made in a letter from Dr SSS Buthelezi to Dr Sageren Aiyer, Naidoo’s colleague and deputy head, appointing him as caretaker manager for Clinical Forensic Pathology services in the province.

A province-wide crisis in mortuary services

Mortuary services all over the province have gone from bad to worse since being taken over by the Department of Health in April 2006. There is a lack of qualified staff at all the mortuaries, and their failure to follow proper protocol in the identification of bodies has been reported. Unnecessary trauma is caused to bereaved relatives by the way they, and the bodies of their loved ones, are treated. At Port Shepstone, for example, if cleaning is taking place an exterior door is left open so, if the cold room door is opened the bodies which are piled up there, which are not necessarily shrouded, are clearly visible to passers-by. This not only impugns the dignity of the dead, but is potentially very traumatic for those in the vicinity, especially children.

Most mortuaries lack essential equipment and even when new mortuaries are built they are not properly equipped and lack trained staff. The new Pietermaritzburg Fort Napier morgue does not have an x-ray machine, nor the services of a specialist pathologist to perform autopsies. Controls over equipment are lacking. According to an eye witness, new body trolleys at Fort Napier were being sold, by staff, to undertakers.

The neglect of forensic services : Defeating the ends of justice?

The services provided by government mortuaries play a vital role in providing evidence in court, but the way they are currently being mismanaged by the DOH, which has had every opportunity to fix the service, could be construed as defeating the ends of justice.

Its failure to provide up-to-date x-ray machines at all mortuaries, which are
essential for x-raying the bodies of gunshot victims, means that bodies from
most other parts of the province have to be brought to Durban – which, given
the logistics, generally does not happen, even when the circumstances of the crime make it imperative for this procedure to take place. Failure to X-ray bodies where deaths have occurred in certain circumstances such as gunshot injuries and child abuse cases, among others, also constitutes a miscarriage of justice.

The lack of training plus the bad attitude of mortuary workers – and the absence of any proper supervision – has potentially dire consequences for the handling and storage of evidence. Bodies are supposed to be sealed in decent quality bags and not opened until the doctor is about to begin the autopsy, and the proper handling of the deceased’s clothing is also very important. Evidence is easily contaminated when (as often happens) these procedures are not observed, or when tissue samples taken are not properly stored. The failure of the DOH to employ properly trained and supervised staff means that valuable evidence is routinely lost to the court.

The shortage of properly qualified doctors is critical, yet the Department seems to value the services of its ill-disciplined and unqualified work force above those of the highly trained forensic specialists it has lost in the past two
years. Autopsies, especially in rural areas, are frequently performed by doctors who have little or no forensic training, with potentially serious consequences for evidential purposes.

The Premier of the province had been apprised of the seriousness of the situation, yet nothing appears to have been done. There is clearly a need for intervention by the National Department of Health – possibly in consultation with the Department of Justice which is a key stakeholder – to ensure that the problems relating to staffing and equipment are sorted out immediately. Also
needed urgently is an audit into how the considerable amount budgeted for
the takeover of the mortuaries by the health department has been spent.

Long-term, there is need for informed debate aboutwhether the Department of Health is a fit and proper body to retain control over these facilities.