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)