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South Africa: Secrecy Bill Evokes Apartheid Era
AfricaFocus Bulletin
Nov 25, 2011 (111125)
(Reposted from sources cited below)
Editor's Note
"The new South Africa is not comparable to the evils of old.
But on Tuesday, when parliament passed a state secrecy law,
we were shamed. The ANC became like its apartheid
predecessors. The party of Mandela ignored the man himself
and muzzled whistleblowers, journalists and its own
citizens. It defied its trade union allies and civil
society, and used its majority to ram through the protection
of information bill, which gives the state power to classify
information and criminalise whistleblowers, journalists and
anyone who comes into possession of such classified
information." - Justice Malala
The bill passed earlier this week is not yet law. And if it
becomes law, it will be challenged in the Constitutional
Court. Nevertheless, its passage is an ominous indication of
dominant views within the ruling ANC, evoking the practices
of the apartheid era. It is being vigorously opposed by a
wide range of civil society and legal and media professional
groups, including the Nelson Mandela Centre of Memory, COSATU, and
a wide range of others historically affiliated with the ANC.
This AfricaFocus Bulletin contains a selection of
commentaries, beginning with Justice Malala's article in The
Guardian, and followed by a number of other commentaries,
made just before or after the vote in parliament.
These, as well as additional documents, are available in a
helpful collection of press releases at:
http://www.ngopulse.org/group/home-page/pressreleases,
published by SANGONET.
For previous AfricaFocus Bulletins on South Africa, visit
http://www.africafocus.org/country/southafrica.php
++++++++++++++++++++++end editor's note+++++++++++++++++
A law that shames South Africa
The ANC's state secrecy law belongs to the apartheid era.
The party of freedom has turned into a party of fear
Justice Malala
http://guardian.co.uk, 23 November 2011
On Tuesday morning my friend Stefaans Brummer, arguably
South Africa's best investigative journalist, sent me a text
message. "When I'm incarcerated at Parkview police station,
please bring me coffee, a muffin and a hacksaw blade," he
wrote. I don't do coffee or muffins, I replied jokingly, but
I might deliver the hacksaw.
It was easy banter between friends, but there was a chill in
our bones. Last Friday Brummer's newspaper, the Mail &
Guardian, had been prevented by President Jacob Zuma's
spokesman from publishing a story. It had alleged that the
spin doctor had lied to investigators about his role in the
taking of bribes in South Africa's notoriously crooked arms
acquisition in the late 1990s.
Brummer and his colleagues were threatened with 15 years in
jail. In response, they blacked out the front page of the
paper and the story. This proud anti-apartheid paper looked
last Friday exactly as it would have in 1989, at the height
of apartheid censorship and harassment of journalists.
It is not the first time that journalists have been harassed
and threatened with jail. Last year an investigative
journalist who exposed multimillion-pound police corruption
was arrested, driven through the night to a remote location
and questioned at 2am.
Over and above the petty harassment, the ANC has vigorously
pursued attempts to set up a government-led media appeals
tribunal to regulate the print media. Since the ascent of
Zuma and his coterie of securocrats to power in 2009, we
journalists have been living with our hearts in our mouths,
afraid that the party of Nelson Mandela would veer away from
the open society it had fought for and join the likes of
Zimbabwe and Equatorial Guinea - countries whose secrecy
laws allow them to jail journalists at will.
For years we had pointed to the north, saying such draconian
laws would never arrive here. Not in the land of the ANC,
Africa's oldest liberation movement, steeped in the values
of openness and dedicated to the fight against corruption.
The new South Africa is not comparable to the evils of old.
But on Tuesday, when parliament passed a state secrecy law,
we were shamed. The ANC became like its apartheid
predecessors. The party of Mandela ignored the man himself
and muzzled whistleblowers, journalists and its own
citizens. It defied its trade union allies and civil
society, and used its majority to ram through the protection
of information bill, which gives the state power to classify
information and criminalise whistleblowers, journalists and
anyone who comes into possession of such classified
information. Journalists such as Brummer and their sources
face up to 25 years' imprisonment.
The bill also seals off state security agencies from any
kind of scrutiny or accountability to the public - meaning
that any investigation that, for example, mirrors the work
done by American journalists to expose Richard Nixon and the
Watergate scandal would be criminal. Crucially, the bill has
no public interest defence.
After the legislation was passed, members of the South
Africa National Editors' Forum - all dressed in black - left
parliament. ANC MPs jeered and shouted: "Bye, bye."
Power and incumbency have not been easy for the ANC. The
party, which turns 100 in January 2012, is riven with
divisions. Corruption allegations surface every day, with
the World Economic Forum pointing out that corruption is
among the top four concerns of potential foreign investors.
This has led to paranoia and fear in the party. State
security agencies are used to target political opponents,
with the latest scandal leading to the head of domestic
intelligence being fired for spying "for the wrong side"
(opponents of Zuma) two months ago. The party of freedom has
turned into the party of fear. In such a climate, the media
and civil society have become the enemy.
But for those of us who have watched the passage of this
bill with a growing horror, the battle is not over. The bill
goes before the second house of parliament and, if passed,
to the president for signature. We are hoping that Zuma will
throw it back. Should he sign it into law then a
constitutional challenge awaits.
For now, though, we feel betrayed by a party that once made
media freedom one of its pillars. The ANC, riven by internal
battles, is beginning to take the country down with it. It
has lost its way. It has blinded itself. For us, it is time
to prepare for a new, long and hard struggle.
Members of Parliament Should Reject the 'Secrecy Bill'
Tuesday, November 22, 2011
* We call on all South African Members of Parliament to vote
against the Protection of State Information Bill this week;
We are civil society organisations who support the
Right2Know campaign. For the past year our members have
spoken out against the Protection of State Information Bill
(Secrecy Bill) and protested against it becoming law on the
basis that many provisions in it violate the Constitution.
The Minister of State Security, Siyabonga Cwele, speaking in
the National Assembly on 16 November 2011, wrongly and
falsely labelled people and groups opposing provisions of
the Secrecy Bill 'local proxies to foreign spies'. The
Minister said that 'foreign spies' were paying civil society
groups to oppose the Secrecy Bill. These inappropriate and
unfortunate remarks were clearly aimed at the Right2Know
campaign.
We note that the Right2Know campaign has always made a list
of all of its funders publicly available on its website. We
therefore challenge the Minister to provide evidence to
support his allegation, which in our view is defamatory. As
a member of Cabinet and the Executive, the Minister's
comments show a disregard for Parliamentary processes and
the valid and legitimate concerns about the implications of
the Secrecy Bill that have been raised by many civil society
organisations, including Congress of South African Trade
Unions (COSATU).
We are deeply concerned that even though during September
2011 the ANC Chief Whip promised extensive provincial
community consultation this is yet to take place. The
Secrecy Bill has now made a sudden and speedy reappearance
on the Parliamentary programme for this term (the Secrecy
Bill was withdrawn from the Parliamentary programme in
September 2011).
Instead of engaging with the substantive local and
international criticism of many provisions of the Secrecy
Bill, the Minister has chosen to cast unfounded and
unconstructive aspersions and to ignore the concerns of
communities campaigning for an open and transparent society
that seeks to expose wrongdoing, corruption and
mismanagement.
We understand that Members of Parliament (MPs) will be
expected to vote for the Secrecy Bill today so that it can
become law by the end of 2011. We note that while there have
been some improvements in the current draft of the Secrecy
Bill compared to its original version, there remains several
provisions that we believe are fundamentally flawed and
unconstitutional.
We reiterate that the lack of a public interest defence
clause and the excessive penalties including incarceration
for whistle-blowers and those in 'possession' of documents
that are accordingly classified as 'state secret' by the
Security Cluster undermine our Constitution. The Secrecy
Bill, as it currently stands, will severely limit civil
society and the media's ability to expose corruption and
mismanagement in government and elsewhere. Thus far, no
convincing argument has been advanced to justify why a
public interest defence clause should be rejected both for
whistleblowers and those in possession of classified
information where it is in the public interest to disclose
such information, and why the penalty provisions should not
be revised.
In addition, as is evident from the battle that the Mail &
Guardian is engaged in regarding the provisions of the
National Prosecuting Authority Act and the recent laying of
criminal charges against those journalists in possession of
information classified as secret by the lawyers acting for
the Presidential spokesperson Mac Maharaj, it is clear that
the real possibility exists for the state and its officials
to take steps to punish and penalise whistleblowers,
community activists and journalists for being in possession
and/or disclosing information in the public interest, where
such information should not be a state secret. What the
'Maharaj - Mail and Guardian' censorship debacle shows is
that the threats that the Right2Know campaign has warned
South Africa about for over a year now, with respect to the
risks inherent in the passing of this law, are now no longer
hypothetical given that criminal charges have been laid
against the journalists involved.
If the Secrecy Bill becomes law as is, MPs that we elected
into power, will be saying to ordinary South Africans that
it is okay to punish the people who disclose and write about
corruption and mismanagement in government and the corporate
sector. It will entrench the capacity of politically
powerful people and institutions, especially those in
government, to hide information and generally act without
transparency or consequence.
As civil society organisations whose members are dedicated
to upholding our Constitution and all the rights and
freedoms enshrined therein, we reject the Secrecy Bill in
its current form because we believe that it erodes our
freedoms and violates our democratic rights. We will oppose
it should it become law by subjecting it to a legal
challenge, along with other groups, and by marching in the
streets.
Therefore
- We call on all MPs including African National Congress
(ANC) MPs not to follow the three-line whip (in which ANC
MPs are required to vote in favour of the bill) this today,
and not to vote in favour of the Secrecy Bill in its current
form;
- We call on President Zuma to show leadership by stopping
this process and ensuring that the Security Cluster in
government does not assume such wide-ranging classification
and punitive powers. President Zuma and the ANC should recommit
itself and this process to proper community oversight
and consultation;
- If the Secrecy Bill is passed into law, we nevertheless
hope that President Zuma will refer the matter to the
Constitutional Court to seek a declaration of
constitutionality. If not, we will join Right2Know and other
groups that seek to declare many provisions in the current
version of the Secrecy Bill unconstitutional;
This is a joint statement issued by the Treatment Action
Campaign, Equal Education, Social Justice Coalition,
SECTION27 and Ndifuna Ukwazi.
For more about the Treatment Action Campaign, refer to
http://www.tac.org.za
For more about the Equal Education, refer to
http://www.equaleducation.org.za
For more about the Social Justice Coalition, refer to
http://www.sjc.org.za
For more about SECTION27, refer to http://www.section27.org.za
For more about Ndifuna Ukwazi, refer to http://www.nu.org.za
Protection of State Information Bill - An Expression of
Concern
Tuesday, November 22, 2011
The Nelson Mandela Centre of Memory, together with the
University of the Witwatersrand School of Law, has been
engaged in processes of dialogue around the Protection of
State Information Bill since its first emergence as a draft
piece of legislation in 2008. From the outset we have sought
to ensure that the Bill meets standards of constitutionality
and aspirations for freedom of information and expression
while at the same time providing protection for legitimate
state secrets.
The drafting process has taken a long path, with some steps
forward and some back. We have convened a number of
stakeholder focus groups with the aim of encouraging a
dialogue between the Bill's drafters and its opponents. Much
has been achieved, but the Bill is not yet at a point where
it can be said to have met the above-mentioned standards and
aspirations.
The Protection of State Information Bill will be passed by
the National Assembly today. It will then be referred to
the National Council of Provinces for further consideration.
Other constitutional processes lie in its likely future.
With this in mind, the Nelson Mandela Centre of Memory has
compiled a position paper setting out its remaining areas of
concern with the Bill and proposing revisions. We will
continue to engage with the development of appropriate and
balanced legislation in this area of law, one crucial for
our constitutional democracy.
For more about the Nelson Mandela Centre of Memory, refer to
http://www.nelsonmandela.org
The Secrecy Bill Will Affect Your Right to Information
Tuesday, November 22, 2011
Throughout the course of the debate on the Secrecy Bill,
government representatives gave numerous assurances that the
proposed legislation would not impact on the citizen's right
to information under the Promotion of Access to Information
Act (PAIA). Despite those assurances, the final version of
the Bill passed by the ad hoc committee restricts the right
to information under PAIA.
After assurances from government in mid-November last year
that the Bill would be aligned with PAIA, less than three
weeks prior to the passage of the Bill by the ad hoc
committee a few key provisions were inserted that completely
reverse the position between the Bill and PAIA.
Currently PAIA overrides any legislation that prohibits or
restricts the disclosure of information in a manner
inconsistent with PAIA. PAIA is therefore the supreme law
relating to access to information in South Africa and any
decision to refuse access to requested records must be based
on one of the grounds of refusal set out in PAIA. New
section 1(4) of the Secrecy Bill, inserted on 31 August
(just 6 days before the Bill was passed by the ad hoc
committee), reverses that position so that the Bill will
override PAIA such that regulators will be able to deny
access to records that have been classified under the Bill
even if none of the grounds of refusal under PAIA are
applicable.
This means that restrictions on the release of information
under the Secrecy Bill will apply even where PAIA would
require that information to be released. It also means that
procedural differences between the Bill and PAIA will be
resolved in favour of the Bill.
In light of this there are two key areas of concern where
the Bill will have a substantial and negative effect on the
right to information under PAIA:
- The Secrecy Bill effectively inserts a new ground for
refusal into PAIA, allowing access to documents requested
under PAIA to be refused merely on the basis of their status
as a classified document. The Secrecy Bill provides that a
classified record must be declassified before it is
released. If it is released prior to declassification both
the person releasing and the person receiving the
information may be subject to criminal prosecution. The test
for declassification does not conform with any of the
grounds for refusal under PAIA;
- The Secrecy Bill extends the timeline for responding to
requests. Where a request is made for access to classified
information, the information holder must consider whether
the information can be declassified. There is no requirement
in the Secrecy Bill that this declassification process be
undertaken in any specific time period, only that the period
is 'reasonable". This is inconsistent with the 30-day time
period for responding to requests under PAIA and will cause
further delays in a system already fraught with delay.
Accordingly, if the Secrecy Bill is passed in its current
form, it will represent an erosion of the right to
information in South Africa without justification. Adequate
protections for records containing issues of national
security, defence and international relations are already
provided under PAIA. Accordingly, the Bill must be aligned
with PAIA by providing that requests for information must be
dealt with in accordance with the provisions of PAIA,
including both the grounds for refusal and timelines
provided in that Act.
For more about the Nelson Mandela Centre of Memory, refer to
http://www.nelsonmandela.org
Wits University Senate Statement on the "Secrecy Bill"
Statement on the "Secrecy Bill"
23 November 2011
"The University of the Witwatersrand notes with concern the
decision by Parliament and the ruling African National
Congress to pass the "Secrecy Bill", which we believe stands
as a deep threat to the fundamental principles enshrined in
our Constitution.
The Protection of State Information Bill may be a necessary
replacement for apartheid-era legislation, but in its
current form would obstruct the access to information
citizens need to ensure transparent and accountable
governance. The Bill entrusts the power of classification,
and the avenue of appeals against classification, to those
who might benefit from the obscurity provided by
classification. The Bill allows for 'national interest' to
be invoked in justification of classification, but provides
sufficient latitude of interpretation of what constitutes
the 'national interest' to allow unscrupulous use of this
measure. It remains silent on the 'public interest'. The
current formulation of this Bill and the heavy penalties it
mandates would impede both the right of the public to
legitimate freedom of information and the intellectual
enquiry that is the essence of academic work.
The proposal for a Media Appeals Tribunal, currently under
consideration by the ANC, might enable direct State
suppression of the freedom of expression. Accountable to
Parliament, which is constituted overwhelmingly by the
ruling party, the Tribunal could undermine the media's
necessary role in informing society. The ruling party's
antagonistic attitude to the print media has been
illustrated by the recent public eviction of a journalist
from a media conference and - very disturbingly - by the
arrest and detention of a journalist at the order of a
politician. Even in the absence of such provocation the
proposed tribunal would represent an unacceptable intrusion
into media freedom.
Taken together, the two initiatives attack key principles
that underpin a democracy - access to information and
freedom of speech - and threaten this country's widely
admired constitutional order. The University expresses its
deep concern at the implications of these measures for civil
liberties and the pursuit of intellectual enquiry, and
insists that, in their current form, they be abandoned."
Read Wits' 2010 statement on the Protection of Information
Bill and the Media Tribunal Process
http://www.link2media.co.za/index.php?option=com_content&task=view&id=9878&Itemid=12
The Nelson Mandela Centre of Memory, together with the Wits
School of Law, has been engaged in processes of dialogue
around the Protection of State Information Bill since its
first emergence as a draft piece of legislation in 2008.
Read an analysis of the Bill's remaining flaws:
Summary Version
http://www.nelsonmandela.org/images/uploads/POSIB_summary.pdf
Readers are also directed to a statement issued in 2011 by
South African Journalism Schools:
http://ccms.ukzn.ac.za/index.php?option=com_content&task=view&id=1094&Itemid=24
SANEF: Outcome of National Assembly Vote on the Protection
of State Information Bill
Wednesday, November 23, 2011
The South African National Editors' Forum (SANEF) is
saddened by the decision of 229 African National Congress
(ANC) members of Parliament to vote in favour of the
Protection of State Information Bill today.
South Africans from all sectors of society have made it
clear that they believe the Bill is a danger to democracy,
and a threat to their rights. We had hoped MPs would hear
the clamour at the gates of the legislature, but they chose
to stop their ears.
Editors from around the country observed the debate in the
National Assembly, and were struck by the intensity with
which opposition parties sought to repudiate the bill in its
current form and to delay its passage.
After the final vote, the editors rose as one and left the
public gallery in protest.
This need not be the end of the road, however. The remaining
serious flaws in the Bill can still be remedied in the
National Council of Provinces, or returned to Parliament by
President Jacob Zuma.
If that doesn't happen, the Bill has only one destination -
the Constitutional Court.
SANEF hopes legal action won't be necessary, and that the
occupants of the people's parliament will seize this last
chance to do the right thing.
This bill has been the source of much division in our
country and the battles around it undermined the nationbuilding
and cohesion we developed in the run-up to, and
during, the World Cup. The damage to our reputation as an
international beacon of democratic behaviour and good
governance is immeasurable.
SANEF will continue to work with fraternal organisations and
civil society formations to stop this bill.
We will also engage with ANC and government leadership on
this matter with the objective of finding a solution that
builds and supports South Africa's constitutional democracy.
For more information contact:
Femida Mehtar
Executive Director
South African National Editors' Forum
Tel: +27 (0) 11 484 3630 / +27 (0) 11 484 3617
Fax: +27 (0) 11 484 3593
Mobile: +27 (0) 84 784 2006
E-mail: director@sanef.org.za
For more about the South African National Editors' Forum,
refer to http://www.sanef.org.za
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publication providing reposted commentary and analysis on
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international policies. AfricaFocus Bulletin is edited by
William Minter.
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