The approach in this presentation, by a human rights defender who is a social scientist, is a comparative one, drawing on material from different societies, and providing a broader context, including historical. The study of different societies teaches us how human beings are fundamentally the same, and how much of their behaviour is a response to societal structures (relating to power distribution), and prevailing values and beliefs (which are not unrelated to economic and political power relationships), which may vary greatly from one society to another. Also drawn on is over twenty years of experience in interventionist work on behalf of victims of violence and other human rights abuses, so the presentation will also touch on ways in which the provisions of this act might impact upon those engaged in human rights work, as well as the public’s right to know about violence and abuse of power by the police. Essentially the argument is that this bill breaches international norms to which democratic societies subscribe relating to access to information and human rights.
The concerns outlined in the written submission refer to the possibility of the provisions of this legislation impacting on the public’s right to know about violence (which could facilitate its continuation), the bill’s over-broad definition of national security, the over-concentration of power to classify in a few hands and inadequate review mechanism, excessive penalties for breach of legislation coupled with the lack of a public interest defence. This oral submission essentially fleshes out the written submission, and deals with concerns, which are inter-linked, under the following broad headings :
1.International perspectives on classification and over-classification
2.The South African classification context
3.Excessive penalties and lack of public interest defence
The main threads of the argument are drawn together in the conclusions.
1.International perspective on classification and over-classification
Despite the bill’s spelling out of the conditions under which information may be classified (Section 14), experience in established democracies such asUKandUSAshows gross over-classification by government bureaucracies, some of it to cover up wrongdoing by governments.
The UKhas seen a series of leaks of official documents over the years, including those dealing with the war in Iraq. In one of these cases, a former Cabinet Office official (Geogh) and former researcher for a Labour MP (O’Connor) were tried and convicted in 2007 for leaking a memo about a 2004 meeting between Prime Minister Blair and President Bush (I shall return to this case when talking about punishment). Among other things, this document is alleged to have noted that Bush had proposed to bomb Al Jazeera broadcaster (which would have been a war crime), and Blair’s criticism of US military tactics. Before the trial the foreign secretary had made it clear that it was embarrassment the government feared – despite her having signed a Public Interest Immunity (PII) certificate claiming there would be damage to US-UK relations if made public, i.e. it involved the ‘risk of harm to national security’. In fact, no harm was done.
Although the true contents of the official government record of the meeting were not made public during the trial of these two men, in other cases in theUKit has been the courts and senior judges who have taken the lead in opposing secrecy. Thanks to the actions of these judges various cases have shown that theUKwas complicit in illegal activities carried out by theUSAin its war against terror. Take, e.g. the secret ‘rendition’ from Pakistan of British resident Binyan Mohamed by the USA, in collusion with Britain’s MI5, and his subsequent torture, In this case, government and lawyers had relied on what journalist Norton-Taylor describes as ‘the tired old argument’ that secrecy on grounds on national security can’t be challenged – which the courts had previously deferred to. This trial showed that theUKhad tried to prevent the release of classified information about it because it would have shown that the government was complicit in cruel and degrading treatment meted out to Mohamed. Judges did not accept the government’s excuse that making this information public would harm relationships between theUSAand theUK, including insofar as intelligence gathering was concerned. They said it was impossible to believe that US would take action againstUKif this material released, and that public interest, accountability and rule of law demanded it – the rule of law being the cornerstone of democracy. ‘In our view, as a court in UK, a vital public interests requires for reasons of accountability and the rule of law in the UK, that a summary of the most important evidence relating to the involvement of the British security services in wrongdoing be placed in the public domain in the UK’
In this case, the government not only wanted to suppress information about unlawful activities, but also the fact that they had lied about it. Top Judge Neuberger commented that some security officials ‘appear to have dubious records when it comes to human rights and coercive techniques’. While publicly claiming they abhorred torture, they had been privately complicit in it.
The campaign for a Public Interest defence is ongoing in theUK.
American Senior Counsel David Sobel also cites examples of over-classification. One well known example concerns events following the leak of a secret government report on the Vietnam war by Daniel Ellsberg in 1971 (The Pentagon Papers). Ellsberg, like those convicted of leaking state information in the UK, claimed he acted on moral grounds (and it has since become common knowledge that the USA pursued this war, despite the costs in terms of lives and money, despite knowing it was unwinnable).
A subsequent Commission on this matter (Moyihan) found that unnecessary classification was rampant in theUSA.
More recently, the chairperson of a Commission established to investigation the attacks of September 2001 commented that three quarters of the documents he had read should not have been classified in the first place.
The European Court of Human Rights, too, has been critical of over-classification, even in situations of armed conflict, finding that in many cases it facilitated violations of basic rights.
2.The South African context in which classification occurs
It should be noted that bothUKandUSAhave a recent history of terrorist attacks, and, following September 2001, both countries tightened up on legislation. They have also both involved in fighting wars in theMiddle East. Canadian legislation is also reportedly a response to the threat of terrorism, given its border with theUSA.
In contrast, 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, during his budget vote, waxed lyrical about ‘prevailing peace and security’, and the country being ‘stable and secure’. Yet now the Hon Minister is claiming that opposition to this bill is linked to foreign spies.
South Africais a new democracy – and democracy doesn’t just happen overnight but needs building, as well as consolidating and defending. This bill requires that senior persons in bureaucracies classify information, yet bureaucracies are beset with problems and are in a state of flux with a high turnover of senior staff, some of it linked to changes in the government executive (e.g. new HODs may be appointed with a change of ministers of MECs). There are factions within bureaucracies, especially in security services such as the police. The well-known matter of General Richard Mdluli,(SAPS Crime Intelligence) including the circumstances surrounding his decision to de-classify a document reportedly relating to an alleged plot against President Zuma raises questions about motives.
Definitions and wording: There are problems relating to the definition of national security. The bill’s definition of national security is so excessively broad that it could be used to classify a huge body of data, e.g. relating to the crime, that should be in the public domain. The specific areas it lists are not exhaustive – they are simply mentioned as included. A tighter definition is required, which lists all areas, i.e. one which is inclusive.
It does not meet criteria of Johannesburg Principles which were drafted in the city in the mid 1990s by international legal experts, and endorsed and utilised by the UN, including its Commission on Human Rights. These principles are very specific about conditions governing the classification of information. They specify that that the law must be unambiguous (the vagueness of the wording of this act in places, including the definition of national security, facilitates ambiguity), and that the burden is on the government to demonstrate the validity of the restriction on information, This the South African government has not done. Categories of information to be withheld must be ‘specific and narrow’ (see, e.g. principles 1, 2 and 12). Principle 12 states that ‘in all laws and decisions concerning the right to obtain information, the public interest in knowing the information shall be a primary consideration’, and denial of information should be subject to some sort of judicial review (Principle 14). As pointed out above, the South African public has had conflicting messages about national security from the Hon Minister, the most recent inference being that the legislation is needed because of some sort of threat to it. As Principle 11 notes, the right to information from public authorities includes information relating to national security (unless government can demonstrate that restriction is necessary to protect a legitimate national security interest.
Two of the aspects of the bill’s definition of national security are of particular concern:
(a)the threat of the use of force or the use of force : This is extremely wide-ranging and vague. The use of force is endemic in SA with its high crime rate. It is also used extensively by the police (examples given below). Virtually anything linked to crime and policing could, in theory, be classified if this phrase is included.
Point (v) of definition : exposure of economic, scientific or technological secrets vital to the Republic. Again, this is far too broad, and easily open to abuse. Science is by its very nature an open system of knowledge which must be constantly debated, revised and updated. Secrecy is the antithesis of science, and renders it easily open to abuse. We must, as TRC warns us, never forget the lessons of the abuse of science under apartheid. Distorted social science was used to underpin the apartheid system, built as it was on separate homelands. The worst damage was done by biochemical/medical scientists, including in apartheid’s chemical warfare programme. This appalling programme was so secret that what was eventually revealed about it (and not everything) was behind closed doors, and the information was initially embargoed by the TRC. No sanctions have ever been brought against those scientists, many of whom continue to work in the scientific/medical field. For all the public knows, some of them may still work for the state.
Another problem is the recurring reference (especially regarding punishment) to the possession or publication of information that might benefit a foreign state. This phrase is far too broad (what type of information? In which ways could it benefit a foreign state?) It is not only states which could benefit from, for example, confidential information about, e.g. defence strategies. The Canadian legislation distinguishes between foreign states, foreign entities and foreign financial entities – for terrorists organisations are generally distinctive from states (political units).
In the contemporary world, large multinationals may have more financial power than smaller states and, like foreign individuals, they are already benefitting from, e.g. information generated from research in South Africa. If human tissue (e.g. blood) is exported by overseas researchers, crucial genetic material, for example, may be patented overseas by pharmaceutical companies or individuals, resulting in loss of income to South Africa (which would need to buy back products produced as a result of research on South Africans).
Classification process and administration of it : Some of the criteria to be considered when classifying information could be problematic/impractical. For example, section 14(3) includes (b) anything that could impair the ability of the govt to protect officials/persons for whom protection services, in the interests of national security, are authorised. Consider that persons for whom protection services are authorised may include a multitude of people at all levels of government – national, provincial, local – could lead to unprecedented levels of non-disclosure to the public who fund this protection, and are entitled to information about whether or not it is warranted (to make matters worse, some of this protection, at least in the eThekwini (Durban) municipality, is reportedly necessary because councillors believe themselves under threat from persons in their own party).
Section 14 3 f, another criterion to be considered when classifying, relates to information causing life threatening harm to individuals. Clarity is needed about the nature of information that could be life-threatening. Countless people live in fear of their lives because, e.g. they are witnesses to crime, or victims of crime, and fear that they will be targeted/further targeted by criminals. People often fear to speak out, or open cases, because of intimidation. If there is any danger to a person’s life, openness, including about the alleged source of the threat, is crucial. It is the principle upon which Amnesty International Urgent Actions from international members works – letters written to those in authority, drawing attention to threats to people’s lives with a view to ensuring that they take action to investigate and protect. Among those who benefitted from this type of action are two MECs in the provincial KZN government who were targeted by hit squads in the 1990s.
Regarding Section 15, returning classified information to a local Agency (Intelligence) might be impractical since the whereabouts of this agency and agents are not generally known. While it would be easier to return classified information to the police there is a general lack of confidence in the police, who may also be feared, for the type of reasons detailed below.
Section 19 :For the provisions of this section relating to requests for classified information to work in practice there would need to be a change of behaviour on the part of state bureaucracies. In various government departments, especially SAPS and Land Affairs, there has been an increasing tendency to fail to respond to correspondence, even in many cases by way of acknowledgement, let alone provide information, e.g. replies to questions asked on behalf of interested parties such as victims of crime, or land claimants/land owners (the same applies to the Department of Health). For example, land owners atByrneValley, nearRichmond, who were subject to a land claim, completed all the necessary forms to access information to which they were entitled in terms of the legislation governing land restitution as well as PAIA, yet never received a response. They followed up with a registered letter to the Regional Land Claims office and, when they tracked the letter with the post office, found that it had never even been collected.
Section 31 : Hopefully the Minister’s Department would be more efficient in responding than the other government departments referred to. However, if an appeal fails, ordinary people (i.e. who are not wealthy, and who lack funding) experience problems in accessing courts for this type of appeal.
Practical examples of how powers to classify could be abused by the police
As elsewhere in this presentation, factual information drawn from KZN Monitor files is used to show potential problems in giving the type of power spelled out in this bill to security agencies, especially the police, without sufficient independent checks on possible abuse. While the examples are drawn from KZN, and there are specific problems in this province relating to its recent history, the matters referred to (and others), have also been drawn to the attention of the national commissioner and minister who are ultimately responsible for policing in KZN, as in other provinces.
Policing in KZN has, since the 1980s, been highly politicised because of (1) the nature of the KwaZulu homeland police force which was amalgamated with the former SAP post-1994 (see TRC findings regarding KZP) and (2) the history of political contestation of the province. In many areas, depending on local level dynamics (e.g. the presence of a warlord with long-standing police connections) policing has not been de-politicised. A KZN Monitor 1999 research report (The more things change…..Policing in the ‘new’ South Africa) documented how badly amalgamation and transformation were handled, which resulted in the sidelining of highly experienced and extremely competent black African police members, many of whom left the service. Political allegiances may also shift depending on political developments and this has happened in some parts of KZN in the past decade.
For example, in the area served by Plessislaer SAPS outside Pietermaritzburg, in the local government elections of 2004 there was evidence of collusion between certain police members and a local IFP strong man, and a police member named by the TRC as a handler of both this man and the late Sifiso Nkabinde (ANC) was openly harassing an ANC ward candidate. However, in the context of current divisions within the ANC in Pietermaritzburg, some of the comrades previously harassed and threatened by police members at the station allegedly colluding with the IFP claim that they are now being harassed by police members acting in collusion with other ANC members in positions of power because, they say, they are trying to deal with corruption.
It is not only political partisanship that the police are accused of. There are numerous reports of abuse by police members, from different units, which are not dealt with by management members. For example, in September 2010 Mr Albert Makhoba, was one of the residents of a rural area outside Sundumbili, north coast, who suffered abuse. His door was kicked down, and then he was beaten and ‘tubed’ (near suffocation with a rubber tube or similar apparatus). He lost consciousness. When he recovered he went to the police station (being a retired police member he knew what to do) and there he saw the members who had assaulted him (they were from a Pietermaritzburg unit). The investigating officer at the same station has been trying to arrange an identification parade since the incident happened, but has received no cooperation from the commanding officer.
A current example of abuse, by TRT (Tactical Response Team) members (who are allegedly involved in widespread abuse), involves a young ANC leader in the Port Shepstone policing cluster area, who opened a case against members who had assaulted him on two occasions (they have assaulted many people in the area, without apparent reason). After the case was opened he received threatening phone calls, and was also warned by credible sources that he might be killed so that he could not identify the culprits at an ID parade. He went into hiding, and moved his wife and child to a safe place, paying someone to look after the family home. Despite various letters to the Port Shepstone Cluster Commander, the police stalled the holding of the ID parade for weeks, and it was only after the intervention of the ICD (Independent Complaints Directorate) that some progress was made in this regard. A parade for witnesses to incidents is still outstanding. As Zulu remains in hiding, three men visited his wife at her place of work – she was on lunch break – and left a message that a man whose name has been widely linked to violence in the Pietermaritzburg area wanted to see her, causing serious concerns for her safety and that of her child.
The apparent complicity of some police members in illegal paramilitary training, which carried on in the province after 1994 is also a cause for concern. This training should be seen against a background of huge quantities of weapons linked to the recent history of political violence in the province that have never been adequately accounted for. For example, of six truck loads of weapons delivered from Vlakplaas before the 1994 elections, only two truck loads, at most, have been accounted for. These weapons included anti-personnel mines, hand grenades, RPG-7 rockets, mortars and rocket launchers.
It is against this background of alleged political partisanship on the part of police members in some areas, and unaccounted for weapons caches, that paramilitary training in the province, in the 2006-2008 period, took place (it may well have continued for all anyone knows), In 2006 it was taking place in the Macambini area, north of uThukela river, and trainers were reportedly seen wearing hats with the old South African flag on them. It was linked to the local traditional leader (Mathaba), who was implicated in gross human rights violations by the TRC, and who continued a campaign of violence against the ANC until fairly recently (when he reportedly joined the ANC). In 2007 following threats to her from both this leader and the trainees, local teacher and ANC stalwart Mrs Sibongile Zungu’s house was attacked by gunmen who were also armed with incendiary devices. Miraculously the family escaped with only the nightclothes they were wearing, but lost everything, including their house. Two grandchildren were injured by shrapnel. The point is that the police had been warned, repeatedly, about the likelihood of Mrs Zungu being attacked. They had also been told about the paramilitary training. They failed to take any preventive action.
In 2008 three young men were being held at the Mlaba camp near Mahlabatini against their will. They had travelled there thinking they were being offered jobs, but found themselves subjected to paramilitary training and alleged political indoctrination. Despite KZN Monitor interventions with senior police members at both the provincial and local station level, it took almost twenty hours before the police went to the camp and took the men away. However, they allegedly failed to assist them, including with travel to their home in the southern part of the province. Photographs of the men who were being trained, together with their trainer (who is known to me from the days of the north coast hitsquad operations) show them wearing paramilitary uniform, which is illegal in terms of PSIRA legislation. A police vehicle is parked near where the trainees are standing. The local station commissioner was one of those approached on the Saturday evening with a view to freeing the young men – but action was only taken late on Sunday morning. She is now the Provincial Commissioner in KZN.
(this matter was reported nationally, and to the Secretariat for Safety and Security, at the time; other matters referred to were also reported nationally)
These examples have been used to show why there is a lack of confidence in the police, and how, given the type of problems described, these examples raise questions about the likelihood of this type of information being classified for purposes of covering up police complicity/failure to act against illegal activities. It is also raises questions about possession of information which could be classified (Section 15). If this type of information was passed to the police (which is the norm when human rights defenders hear of illegal activities, or the threat of violence) and they decided to classify it, would those providing the information be expected to refrain from talking about it – even if the classifiers failed to take action and thus further endangered people’s lives. Quite apart from the question of being in possession of information one had gathered oneself, classification could be used to justify not supplying information when it was requested – allowing violence and abuse to flourish in secrecy.
In the written presentation, parallels were drawn between what was happening in the 1980s and what could conceivably happen if this Bill was passed in its present form. In the 1980s most people who did not live in the areas, or have contact with people in affected areas – mainly, but not exclusively, townships and informal settlements pre-1990 – did not know what was really happening, and how the violence was apartheid state sponsored using surrogates. They believed that Inkatha (as it was then known) was simply defending itself against ‘terrorists’. Of course, the SABC was the voice of the apartheid state, and most newspapers had problems of their own (infiltration, e.g. by apartheid agents, or simply ignorance of what life was like for black people under apartheid because of decades of enforced racial separation). However, there is no doubt that the Emergency regulations also stifled reporting initiatives. There were some courageous editors and journalists who did their best to cover what was happening, but their hands were tied by Emergency regulations. The then Natal Witness, e.g. gave good coverage of what was happening around Pietermaritzburg, which became toned down because of threats of legal action from the state intimidated the editor and journalists concerned. As a consequence of the combination of brainwashing and control over information there was no informed public outrage about what was really happening demanding that action be taken. Secrecy about the reality of the violence facilitated its continuation.
In other words, if the classification process is abused – and it is easily open to abuse – this legislation could achieve the same purpose as the Emergency Regulations of the 1980s.
3.Excessive penalties and lack of Public Interest defence
Punishment : The written submission refers to similarities between this bill and the Official Secrets Act of Malaysia – including over-broad wording, categories of classification, information being useful to foreign countries, the absence of a public interest defence, and harsh penalties (although, ironically, most of the penalties spelled out in this Bill are even more punitive than those of Malaysian legislation)
Compare the provisions of this Bill with the penalties spelled out for transgressing the Canadian legislation (which distinguishes between espionage and the passing on of information classified as, e.g. ‘special operational; this legislation is far more specifically worded, e.g. about harm to Canada, than the SA bill) For example, in terms of section 13(1) a person permanently bound to secrecy who commits an offence by intentionally communicates or confirms information that, if it were true would be special operational information, penalty is five years less a day (it matters not whether true or not). For intentionally passing on special operational material maximum imprisonment is fourteen years. However, Section 15 of the legislation allows for a Public Interest defence for disclosure of such information.
Regarding penalties in the UK, the written submission referred to the case of foreign office clerk, Sarah Tisdell, who leaked information about American naval activities, who was sentenced to six months imprisonment, of which she served three months. In the matter of the leaked memo relating to the Bush/Blair meeting referred to earlier in this presentation, Keogh was sentenced to six months, O’Connor to three.
The punishments referred to regarding Canada and the UK relate to those who are bound by secrecy and who leak information (who are those, in the UK, who were imprisoned).
By comparison, the punishments contained in this Bill are excessive and unduly punitive, especially in terms of international norms (even, as indicated, in some instances in excess of those laid down in Malaysian legislation)
The written submission refers also to comparative sentences handed down for other crimes in South Africa. Take, for example, the case of the policemen who killed Mr Ngwenya (tortured him until he died), and then covered up their crime by lying to his widow and their superiors about his having escaped from custody (they would have got away with it had an informer not come forward and indicated where the remains had been buried). Convicted of culpable homicide they remained out of prison while their appeal, which was unsuccessful, proceeded, and then served approximately four years of their longer sentence (they were released recently, much to the dismay of the family of the deceased). Two siblings who were found guilty in the Durban High Court recently of killing their parents (the Lotter case) will each serve only several years in prison . Compare these prison terms with those detailed in the legislation for possession classified information (which vary according to level of classification, but are excessive in all cases).
To make matters worse, it is well known that, despite the South African constitution, the rights of prisoners are regularly breached through, e.g. rape, or even killing by members of prison gangs.
The punishments detailed in this Bill are clearly, in terms of the Johannesburg Principles (24) ‘disproportionate to the seriousness of the actual crime’
Inadequate controls and lack of public interest defence
While the role of the parliamentary portfolio committee in appointing the envisaged review panel is acknowledged (Chapter 7), as is the fact that this panel would report to parliament, it is probable that it would not be sufficiently independent because the numerical balance of power in parliament lies with the governing party, which has taken a unified stand in promoting this bill (i.e. no free voting by party representatives supposed to have been allowed). There is a need for built in, independent review of a judicial nature(see Principle 14, Johannesburg Principles). Nor are there sufficient checks and balances for classifying information in the first place, since the Minister for State Security may delegate to other organs of state – and heads of Departments may delegate further.
Also of concern is that this legislation takes precedence over PAIA
A public interest defence for leaking and possessing classified information should be mandatory. As Article 19 (Global Campaign for Freedom of Informaiton) puts it in its critique of the Malaysian legislation :
Protection for disclosure in the public interest should not only extend to the media. Those who, in the course of their employment, come across classified material that discloses wrongdoing should also benefit from protection if they decide, in good faith, to release it. Protection for so-called ‘whistleblowers’ is a vital element in freedom of information and
encourages good administrative practices at all levels of the civil service
Principle 13 of the Johannesburg Principles, too, emphasises the need for a Public Interest defence as a primary consideration.
This legislation is out of step with international trends in democratic countries and creates the unfortunate perception that it is closer to that enacted byMalaysia, where similar legislation is used to suppress dissent.Malaysia, according to Amnesty International’s 2011 report, still has detention without trial and the death penalty, and canes prisoners (including women).
The world looks up toSouth Africabecause of its constitution – but this legislation is not worthy of our constitution. Countless people gave their lives, especially inKwaZulu-Natal, for this constitution. This presentation has drawn attention to problems with the legislation, and has argued that it is easily open to abuse by people in positions of power, including in the police. As a consequence, the work of human rights defenders may become more difficult, and increased secrecy could not only cover up violence, but make it more difficult to deal with. It is impossible to over-emphasise the importance of openness and freedom of information when there is a risk of violence, and people’s lives are at stake.
While there is a need for legislation for legitimate national interest it should be minimal, and follow the type of international norms and guidelines referred to. Our constitution, and the safety of all South Africans, demand nothing less.
 Richard Norton-Taylor, ‘The Pursuit of Secrecy’ Index on Censorship Vol 39, no 2, 2010 pp14-23.
 David Sobel, ‘The urge to classify’, in Index on Censorship, Vol 40, no 1 pp 29-31
 de Haas M ‘Social and cultural issues in human tissue use in South Africa’ South African Journal of Bioethics and Law 2011 (on line). Products developed by the taxpayer-funded scientists working on apartheid’s chemical warfare programme were patented elsewhere in the world. Research in the 1990s by an advocate who is an authority on money-laundering, Jennifer Wild, showed that the patent for the Tracker device used in vehicles, which was developed; by the SADF, was then held by, among others, the head of the police forensic laboratory Gen Lothar Neethling
 See KZN Monitor report ‘The Scorpions : Trial by Innuendo and the Media’ 2003
 Richard Norton-Taylor, ‘The Pursuit of Secrecy’ Index on Censorship Vol 39, no 2, 2010 pp14-23.
 David Sobel, ‘The urge to classify’, in Index on Censorship, Vol 40, no 1 pp 29-31
 de Haas M ‘Social and cultural issues in human tissue use in South Africa’ South African Journal of Bioethics and Law 2011 (on line). Products developed by the taxpayer-funded scientists working on apartheid’s chemical warfare programme were patented elsewhere in the world. Research in the 1990s by an advocate who is an authority on money-laundering showed that the patent for the Tracker device used in vehicles, which was developed; by the SADF, was then held by, among others, the head of the police forensic laboratory Gen Lothar Neethling
 See KZN Monitor report ‘The Scorpions : Trial by Innuendo and the Media’ 2003