The fight between Public Protector Thuli Madonsela and the security cluster is about much more than her provisional report into state expenditure at President Jacob Zuma’s private Nkandla homestead.
It signals the start of a new war between openness and accountability, on the one hand, and secrecy, cloaked in the garb of security, on the other. And it is clear that the Protection of State Information Bill – the so-called secrecy Bill – passed for the third time in the National Assembly this week, opens up a dangerous new front in that war.
Last Friday, Police Minister Nathi Mthethwa approached the Pretoria high court to interdict Madonsela from releasing the draft report, purportedly in a quest for more time.
In effect, though, he sought to block the release until the security cluster ministers were satisfied with the way she had accommodated their concerns about allegedly sensitive information.
What emerges starkly in the court papers is that the ministers believe any document that draws on classified information must itself be classified. In his founding affidavit, Mthethwa in effect threatened criminal sanction should Madonsela release an uncensored draft report to other “affected, implicated and interested parties” to obtain their responses.
Principle of secrecy
He warned: “Release of the provisional report to third parties … without prior authorisation of [the ministers] … is unlawful and carries … a criminal penalty.”
Mthethwa’s affidavit attached an earlier letter to Madonsela from Public Works Minister Thulas Nxesi, also on behalf of the defence, police and state security ministers.
Nxesi made the point explicitly: “As neither I, nor the ministers involved, have given the necessary permission to declassify the documentation relied upon by you in your provisional report, we deem it necessary to inform you that to release your provisional report without our authorisation would, in effect, result in … a contravention of section 4 of the National Key Points Act, 102 of 1980, and section 4 of the Protection of Information Act, 84 of 1982.”
Nowhere did Mthethwa refer to any specific contents of the draft report to justify the claim that the president’s security was at risk.
What really seems to be at stake is the principle of secrecy – and who gets to pronounce on it.
In her stinging reply, Madonsela said the ministers did not cite a “single fact” to illustrate how the president’s safety would be compromised by the disclosure of the draft report.
In his second affidavit, tabled on Thursday, Mthethwa sidestepped that challenge, claiming it was irrelevant to the request for more time.
In their reply, the ministers abandoned their interdict, citing the fact that Madonsela, in asking for the matter to be postponed until November 15, had in effect given them the extra time they asked for.
But it would be a mistake to see this as a final climb-down instead of a tactical retreat.
Further litigation to come?
In his second affidavit, Mthethwa foreshadows potential further litigation, stating: “It will be argued at an appropriate time, when the need arises, that the [public protector], not being an expert on matters of security, cannot be an arbiter on whether or not there exists a security breach from the contents of the provisional report … Should the respondent arrogate to herself that power to determine whether or not there is a breach of security arising from the contents of her provisional report, I am advised that she will in law be acting ultra vires her powers and the law.”
In short, ministers, not Madonsela, must decide whether the report breaches security.
Mthethwa adds: “The classified and top-secret information extracted by [the public protector] in her provisional report … is governed by the minimum information security standards, and it is those classified and top-secret documents and/or extracts that require the minister to authorise its further publication.”
Clearly, no authorisation has been granted. If Madonsela does not excise what they ask her to, there appears to be a real chance the security cluster will return to court.
The state security department itself accepts that apartheid-era laws the ministers rely on are probably unconstitutional, making the ministers’ attempt to exert their authority over Madonsela something of a reach.
That will change when the secrecy Bill is signed into law – which the president could do any day now.
Top secret
The new Act specifies that the state security minister will make regulations governing how chapter nine institutions – including the public protector and the auditor general – will be allowed to access and use classified information.
The push for a security curtain was echoed in the report of the Joint Standing Committee of Intelligence (JSCI), which released its Nkandla report on Thursday.
After the outcry over the expenditure – about R210-million – in November 2012, the public works minister appointed a government task team to investigate. Its report – classified as top secret – was delivered to Nxesi in January.
In June, the report was referred to the JSCI, which usually carries out oversight of the intelligence services.
An opinion from the parliamentary legal adviser recommended the JSCI restrict itself to matters to do with security oversight, redact sensitive information and then refer the report to the National Assembly.
The JSCI ignored this advice, endorsed the top-secret classification and even recommended that any new information uncovered should be referred back to the JSCI for consideration behind closed doors.
It notes: “Matters relating to the allocation of tenders … should be referred to the office of the auditor general for a full investigation … However, the JSCI believes that because of the classification aspects of the subject matter, the auditor general should report on this investigation to the JSCI.”
Of even more concern is how the JSCI parrots the ministers’ line in their interaction with Madonsela.
A sign of things to come
In a veiled reference to her, the JSCI notes: “Entities which have investigative powers … should not be inappropriately motivated … to launch into an investigation on a matter which has already been assigned to another entity. It is therefore recommended that the executive give urgent attention to this matter … so that unnecessary parallel investigations can be avoided.”
This was precisely the argument the ministers used to try to discourage Madonsela’s Nkandla investigation.
In a letter to Madonsela in April, the state attorney referred to her meeting with the ministers and noted: “The purpose … was to discuss with you our concerns regarding parallel investigations ...”
He said a draft proclamation for the Special Investigating Unit to take up the matter had already been sent to the president and a request for an Nkandla audit had been addressed to the auditor general. “Our clients, therefore, propose … that you hold your investigation in abeyance until the processes embarked upon have been completed.”
Madonsela said in her affidavit this week that the auditor general’s audit had not materialised, nor had the Special Investigating Unit yet been authorised to investigate.
Source: Mail & Guardian
Showing posts with label Access to Information. Show all posts
Showing posts with label Access to Information. Show all posts
Friday, November 15, 2013
Wednesday, November 28, 2012
Time to raise the bar on Africa’s integration
MUCH has been said about African trade and the continent’s integration into a range of forums. It is the policy of African governments, and plenty of implementation is under way.
Africa’s leaders have long recognised the importance of economic integration as a remedy for the continent’s fragmentation. At the past two African Union summits, much was discussed regarding intra-African trade. We know the problems, the diagnostics and even the cure.
More than half of Africa’s 54 countries have a gross domestic product of less than $10bn, and a population of less than 10-million. Sixteen are landlocked, with all the challenges associated with small size and small markets. All of this is known.
Most African countries struggle to achieve the economies of scale required to become competitive internationally. That is why, through successive agreements, African governments have committed themselves to the pursuit of greater integration.
These commitments have not always proved easy to implement. In practice, national priorities have often trumped regional needs — a phenomenon not unique to Africa, of course.
As a result, the opportunities of regional integration have not been fully exploited. Yet today, as yesterday, trade still holds tremendous unrealised potential as a driver of growth and a way of improving food security, creating jobs and reducing poverty.
In short, while intra-African trade has more than doubled over the past five years, it remains far below potential. Most people would agree there are four pervasive challenges:
• a lack of adequate hard infrastructure, in particular transport, connectivity and energy;
• problems with ‘soft’ infrastructure — the institutions and regulations to facilitate trade links, which includes the overall business environment, and impediments to the free movement of goods, capital and talent;
• myriad company-level challenges that affect the private sector and the emergence and sustainability of exports, such as quality and meeting standards; and
• access to finance, trade finance and the financial infrastructure that supports trade.
These are issues we know well. Of growing urgency are railways and maritime port capacity. Much of our railway network dates back to the colonial era, and the costs of ageing systems with multiple gauges are now a real impediment. Few railways have been built since independence.
At our ports, crucial for regional integration and international trade, capacity has become a major obstacle. The volume of freight that they handle has increased dramatically in recent years. Most of these ports were not designed with a regional market in mind, and many are rapidly running out of capacity, especially as mineral exports increase.
As a result, they operate well below international norms, resulting in higher costs and longer processing times.
We know what has to be done, including the financing gap. Today, we need to ask a different question: since we all seem to agree on the principles and even the road map, what keeps us from faster progress? And how can our legislatures help?
Of late, many African countries have celebrated their golden jubilees. There has been much celebration, indeed, but also soul searching. There has been acknowledgment of progress and of disappointments.
However, as with all celebrations, there is the morning after. Where did we go wrong? Could we have charted a different path?
While we are all wiser in hindsight, there is no doubt we could have made better progress. And the new global environment dictates we do better.
As Africa enters this new era, we have only two options: a paradigm shift or a new period of muddling through, pleading some sort of African exceptionalism.
Our founders laid the basis: political liberation. They achieved much, including the epic struggle to rid Africa of the last vestiges of colonialism and apartheid. Like all pioneers, they often made mistakes — sometimes costly ones — that led to military dictatorships, one-party states and economic experimentation. In between, often economic meltdown, mayhem and even genocide.
There is much unfinished business politically: building peace, security and rule of law. However, most people would now agree the colossal struggle in Africa must be that of economic liberation through integration. There is also now near unanimity that this outcome is not possible with 54 balkanised states, economically speaking.
Nations develop through trade and investment. Of course some develop by exploiting other nations’ wealth and labour, and by imposing on other nations economic policies that they did not follow themselves at earlier stages of their development.
I am not saying Africa should also explore the second option. That would be absurd. What I want to suggest is different, an affirmation that many of the regions also grew by integration. By delaying economic integration in Africa, therefore, we are almost by default making it possible for others to continue exploiting our wealth and potential.
Former president Julius Nyerere of Tanzania, one of the founding fathers of the Organisation of African Unity, had this to say in Accra at Ghana’s 40th independence anniversary: "The confession is that we of the first-generation leaders of independent Africa have not pursued the objective of African unity with the vigour, commitment and sincerity that it deserved ...
"So this is my plea to the new generation of African leaders and African peoples: work for unity with the firm conviction that without unity, there is no future for Africa.
"My generation led Africa to political freedom. The current generation of leaders and peoples of Africa must pick up the flickering torch of African freedom, refuel it with their enthusiasm and determination, and carry forward Africa’s integration."
These are powerful words. The case he makes was valid yesterday and remains so today, more urgent than ever given recent developments in the global economy.
• Kaberuka, who holds a doctorate degree in economics from the University of Glasgow, is serving his second five-year term as president of the African Development Bank. He was the architect of Rwanda’s economic reforms and growth, having served there as finance minister from 1997 to 2005.
Source: Business Day
Africa’s leaders have long recognised the importance of economic integration as a remedy for the continent’s fragmentation. At the past two African Union summits, much was discussed regarding intra-African trade. We know the problems, the diagnostics and even the cure.
More than half of Africa’s 54 countries have a gross domestic product of less than $10bn, and a population of less than 10-million. Sixteen are landlocked, with all the challenges associated with small size and small markets. All of this is known.
Most African countries struggle to achieve the economies of scale required to become competitive internationally. That is why, through successive agreements, African governments have committed themselves to the pursuit of greater integration.
These commitments have not always proved easy to implement. In practice, national priorities have often trumped regional needs — a phenomenon not unique to Africa, of course.
As a result, the opportunities of regional integration have not been fully exploited. Yet today, as yesterday, trade still holds tremendous unrealised potential as a driver of growth and a way of improving food security, creating jobs and reducing poverty.
In short, while intra-African trade has more than doubled over the past five years, it remains far below potential. Most people would agree there are four pervasive challenges:
• a lack of adequate hard infrastructure, in particular transport, connectivity and energy;
• problems with ‘soft’ infrastructure — the institutions and regulations to facilitate trade links, which includes the overall business environment, and impediments to the free movement of goods, capital and talent;
• myriad company-level challenges that affect the private sector and the emergence and sustainability of exports, such as quality and meeting standards; and
• access to finance, trade finance and the financial infrastructure that supports trade.
These are issues we know well. Of growing urgency are railways and maritime port capacity. Much of our railway network dates back to the colonial era, and the costs of ageing systems with multiple gauges are now a real impediment. Few railways have been built since independence.
At our ports, crucial for regional integration and international trade, capacity has become a major obstacle. The volume of freight that they handle has increased dramatically in recent years. Most of these ports were not designed with a regional market in mind, and many are rapidly running out of capacity, especially as mineral exports increase.
As a result, they operate well below international norms, resulting in higher costs and longer processing times.
We know what has to be done, including the financing gap. Today, we need to ask a different question: since we all seem to agree on the principles and even the road map, what keeps us from faster progress? And how can our legislatures help?
Of late, many African countries have celebrated their golden jubilees. There has been much celebration, indeed, but also soul searching. There has been acknowledgment of progress and of disappointments.
However, as with all celebrations, there is the morning after. Where did we go wrong? Could we have charted a different path?
While we are all wiser in hindsight, there is no doubt we could have made better progress. And the new global environment dictates we do better.
As Africa enters this new era, we have only two options: a paradigm shift or a new period of muddling through, pleading some sort of African exceptionalism.
Our founders laid the basis: political liberation. They achieved much, including the epic struggle to rid Africa of the last vestiges of colonialism and apartheid. Like all pioneers, they often made mistakes — sometimes costly ones — that led to military dictatorships, one-party states and economic experimentation. In between, often economic meltdown, mayhem and even genocide.
There is much unfinished business politically: building peace, security and rule of law. However, most people would now agree the colossal struggle in Africa must be that of economic liberation through integration. There is also now near unanimity that this outcome is not possible with 54 balkanised states, economically speaking.
Nations develop through trade and investment. Of course some develop by exploiting other nations’ wealth and labour, and by imposing on other nations economic policies that they did not follow themselves at earlier stages of their development.
I am not saying Africa should also explore the second option. That would be absurd. What I want to suggest is different, an affirmation that many of the regions also grew by integration. By delaying economic integration in Africa, therefore, we are almost by default making it possible for others to continue exploiting our wealth and potential.
Former president Julius Nyerere of Tanzania, one of the founding fathers of the Organisation of African Unity, had this to say in Accra at Ghana’s 40th independence anniversary: "The confession is that we of the first-generation leaders of independent Africa have not pursued the objective of African unity with the vigour, commitment and sincerity that it deserved ...
"So this is my plea to the new generation of African leaders and African peoples: work for unity with the firm conviction that without unity, there is no future for Africa.
"My generation led Africa to political freedom. The current generation of leaders and peoples of Africa must pick up the flickering torch of African freedom, refuel it with their enthusiasm and determination, and carry forward Africa’s integration."
These are powerful words. The case he makes was valid yesterday and remains so today, more urgent than ever given recent developments in the global economy.
• Kaberuka, who holds a doctorate degree in economics from the University of Glasgow, is serving his second five-year term as president of the African Development Bank. He was the architect of Rwanda’s economic reforms and growth, having served there as finance minister from 1997 to 2005.
Source: Business Day
Friday, August 17, 2012
Why are you repeating the sins of the apartheid regime?
DEAR Deputy Minister Ebrahim,
You are a minister of the South African government, appointed to advance the interests of the republic and the people of South Africa in an impartial and rational manner. As a citizen and as a national religious leader of South Africa, I object to the way in which you are abusing your high office to promote your personal agenda.
You obviously have a "blind spot" when it comes to Israel; you lose your sense of objectivity and rationality when dealing with the Jewish state.
You have used your platform and title in an active campaign to prevent South Africans — and especially members of the government — from visiting Israel. This is but one example of your irrational obsession with Israel to the detriment of the proper execution of your governmental duties. You have acted in breach of your government’s own foreign policy, in terms of which South Africa and Israel have full diplomatic relations.
Your actions hark back to apartheid-style control of information and censorship.
Why would you try to prevent South Africans from travelling to Israel and seeing the situation for themselves? Do you think, Mr Ebrahim, that the South African people are not as clever as you are, that they cannot think for themselves and that they need to be protected from the facts?
Maybe you are afraid — and rightly so — that if people go to Israel and see the situation for themselves, their perspective will be completely different. Are you worried that they will see that, in fact, there is no apartheid in Israel? South Africans visiting Israel will find a multiracial, multi-ethnic vibrant society in which more than 1.5-million Arabs live as full and equal Israeli citizens, vote as part of a single national voters’ roll and have full legal rights in all areas of society.
Are you concerned that when South Africans travel on buses, visit parks, malls, hospitals and university campuses, attend the Israeli parliament and the Supreme Court, they will find Jews and Arabs living and working together in complete equality? They may hear, for example, that, in fact, it was an Arab judge who convicted former Israeli president Moshe Katsav on rape charges.
Maybe you are afraid that South African Christians will find that Israel is the only country in the Middle East where they can practise their religion freely, without fear; that South African women will find that Israel is the only country in the Middle East where they can be fully equal citizens; that South African trade unionists will discover that Israel is the only country in the Middle East where there are legal and active trade unions that protect workers’ rights; that South African journalists will see that Israel is the only country in the Middle East where freedom of expression is properly upheld.
Are you worried that our fellow South Africans may learn that successive Israeli governments have supported the establishment of a Palestinian state as part of a negotiated peace agreement?
Are you concerned that South Africans may speak to Ehud Barak, the dovish former prime minister of Israel, who desperately tried at the Camp David and Taba negotiations to create a Palestinian state, only to be rebuffed by the Palestinian leadership?
Are you concerned that South Africans might hear for themselves directly from the current Israeli government how it seeks to return immediately to the negotiating table without preconditions, and that it is the Palestinian leadership that refuses to do so?
Maybe you are worried that our fellow South Africans may discover that the so-called "separation wall" is actually a security fence; that before it was erected, waves of suicide bombers killed more than 1,300 Israelis and wounded more than 10,000, and that since its erection these attacks have stopped. Maybe you are afraid that South Africans might speak to members of Hamas, who openly call for the destruction of the state of Israel and the murder of all Jews around the world.
Mr Ebrahim, your personal bias against Israel prevents you from fulfilling your legal and ethical duties as minister of international relations and co-operation, who, with impartiality and sound judgment, is supposed to further peace, justice and South African strategic interests in the world. Your actions to discourage South Africans from travelling to Israel are but one manifestation of your extremist views.
In so doing, you are jeopardising SA’s international credibility and strategic interests. It is indeed the ideological allies of Hamas and Hezbollah — Israel’s sworn enemies — who have also launched a terror campaign against Christian communities throughout Africa. In recent months, scores of churches have been burnt and hundreds of Christians have been murdered because of their faith. Nigeria, one of our key African partners, has borne the brunt of some of the worst attacks.
As a leading African nation, South Africa must condemn these attacks and express support and offer assistance to its fellow African governments in Nigeria, Somalia, Sudan and elsewhere. To South Africa’s shame, you have remained silent. You have been too hesitant and weak in condemning Syrian President Bashar al-Assad’s actions, which have resulted in the deaths of more than 20,000 of his citizens and the displacement of nearly 150,000 people.
These are but a few examples of how your prejudice precludes you from fulfilling your role as a minister of this government.
You seem to forget that your mandate is to serve the interests of the people and the government of South Africa and not your own personal allegiances. A judge who is biased or perceived to be so is legally and ethically required to remove himself from the case, in the interest of integrity, justice and truth. These same values require that you do the same and resign.
Especially during such turbulent times, how does a minister of international relations discourage people from travelling and seeing for themselves?
Why do you repeat the sins of the apartheid regime and shun dialogue with and understanding of the "other"?
Peace cannot be achieved by withdrawal and isolation; as the Book of Psalms (34:15) says: "Seek peace, and pursue it." The dream of peace will become a reality only when people proactively pursue it and move beyond their prejudices and preconceptions and truly understand the complex realities of the Middle East in an open-minded and balanced way. Your actions support the forces of extremism, hatred and violence, and undermine the forces of tolerance, freedom and peaceful negotiations.
For the sake of peace and justice, we need more information, not less; we need more dialogue, not less; we need more connections with other societies, not less. You clearly do not believe so, and hence you are unfit to hold public office.
Do the honourable thing: resign.
Dr Warren Goldstein
Chief Rabbi
Source: Business Day
You are a minister of the South African government, appointed to advance the interests of the republic and the people of South Africa in an impartial and rational manner. As a citizen and as a national religious leader of South Africa, I object to the way in which you are abusing your high office to promote your personal agenda.
You obviously have a "blind spot" when it comes to Israel; you lose your sense of objectivity and rationality when dealing with the Jewish state.
You have used your platform and title in an active campaign to prevent South Africans — and especially members of the government — from visiting Israel. This is but one example of your irrational obsession with Israel to the detriment of the proper execution of your governmental duties. You have acted in breach of your government’s own foreign policy, in terms of which South Africa and Israel have full diplomatic relations.
Your actions hark back to apartheid-style control of information and censorship.
Why would you try to prevent South Africans from travelling to Israel and seeing the situation for themselves? Do you think, Mr Ebrahim, that the South African people are not as clever as you are, that they cannot think for themselves and that they need to be protected from the facts?
Maybe you are afraid — and rightly so — that if people go to Israel and see the situation for themselves, their perspective will be completely different. Are you worried that they will see that, in fact, there is no apartheid in Israel? South Africans visiting Israel will find a multiracial, multi-ethnic vibrant society in which more than 1.5-million Arabs live as full and equal Israeli citizens, vote as part of a single national voters’ roll and have full legal rights in all areas of society.
Are you concerned that when South Africans travel on buses, visit parks, malls, hospitals and university campuses, attend the Israeli parliament and the Supreme Court, they will find Jews and Arabs living and working together in complete equality? They may hear, for example, that, in fact, it was an Arab judge who convicted former Israeli president Moshe Katsav on rape charges.
Maybe you are afraid that South African Christians will find that Israel is the only country in the Middle East where they can practise their religion freely, without fear; that South African women will find that Israel is the only country in the Middle East where they can be fully equal citizens; that South African trade unionists will discover that Israel is the only country in the Middle East where there are legal and active trade unions that protect workers’ rights; that South African journalists will see that Israel is the only country in the Middle East where freedom of expression is properly upheld.
Are you worried that our fellow South Africans may learn that successive Israeli governments have supported the establishment of a Palestinian state as part of a negotiated peace agreement?
Are you concerned that South Africans may speak to Ehud Barak, the dovish former prime minister of Israel, who desperately tried at the Camp David and Taba negotiations to create a Palestinian state, only to be rebuffed by the Palestinian leadership?
Are you concerned that South Africans might hear for themselves directly from the current Israeli government how it seeks to return immediately to the negotiating table without preconditions, and that it is the Palestinian leadership that refuses to do so?
Maybe you are worried that our fellow South Africans may discover that the so-called "separation wall" is actually a security fence; that before it was erected, waves of suicide bombers killed more than 1,300 Israelis and wounded more than 10,000, and that since its erection these attacks have stopped. Maybe you are afraid that South Africans might speak to members of Hamas, who openly call for the destruction of the state of Israel and the murder of all Jews around the world.
Mr Ebrahim, your personal bias against Israel prevents you from fulfilling your legal and ethical duties as minister of international relations and co-operation, who, with impartiality and sound judgment, is supposed to further peace, justice and South African strategic interests in the world. Your actions to discourage South Africans from travelling to Israel are but one manifestation of your extremist views.
In so doing, you are jeopardising SA’s international credibility and strategic interests. It is indeed the ideological allies of Hamas and Hezbollah — Israel’s sworn enemies — who have also launched a terror campaign against Christian communities throughout Africa. In recent months, scores of churches have been burnt and hundreds of Christians have been murdered because of their faith. Nigeria, one of our key African partners, has borne the brunt of some of the worst attacks.
As a leading African nation, South Africa must condemn these attacks and express support and offer assistance to its fellow African governments in Nigeria, Somalia, Sudan and elsewhere. To South Africa’s shame, you have remained silent. You have been too hesitant and weak in condemning Syrian President Bashar al-Assad’s actions, which have resulted in the deaths of more than 20,000 of his citizens and the displacement of nearly 150,000 people.
These are but a few examples of how your prejudice precludes you from fulfilling your role as a minister of this government.
You seem to forget that your mandate is to serve the interests of the people and the government of South Africa and not your own personal allegiances. A judge who is biased or perceived to be so is legally and ethically required to remove himself from the case, in the interest of integrity, justice and truth. These same values require that you do the same and resign.
Especially during such turbulent times, how does a minister of international relations discourage people from travelling and seeing for themselves?
Why do you repeat the sins of the apartheid regime and shun dialogue with and understanding of the "other"?
Peace cannot be achieved by withdrawal and isolation; as the Book of Psalms (34:15) says: "Seek peace, and pursue it." The dream of peace will become a reality only when people proactively pursue it and move beyond their prejudices and preconceptions and truly understand the complex realities of the Middle East in an open-minded and balanced way. Your actions support the forces of extremism, hatred and violence, and undermine the forces of tolerance, freedom and peaceful negotiations.
For the sake of peace and justice, we need more information, not less; we need more dialogue, not less; we need more connections with other societies, not less. You clearly do not believe so, and hence you are unfit to hold public office.
Do the honourable thing: resign.
Dr Warren Goldstein
Chief Rabbi
Source: Business Day
Thursday, August 16, 2012
WikiLeaks slams UK's Ecuador embassy threat
WikiLeaks has condemned a British threat to raid the Ecuador embassy in London where its founder is holed up as a "hostile and extreme" assault on asylum-seekers.
"WikiLeaks condemns in the strongest possible terms the UK's resort to intimidation," it said in a statement.
"A threat of this nature is a hostile and extreme act, which is not proportionate to the circumstances, and an unprecedented assault on the rights of asylum-seekers worldwide."
WikiLeaks founder Julian Assange, an Australian national, has been in the embassy since June in a bid to avoid extradition to Sweden, where he faces questioning over sex assault claims.
The Australian fears Stockholm will turn him over to the United States where he could face espionage and conspiracy charges over revelations by his website.
Ecuador Foreign Minister Ricardo Patino earlier said Britain had threatened to "storm our embassy if Ecuador does not hand over Julian Assange".
WikiLeaks said the embassy was currently surrounded by police "in a menacing show of force".
"Any transgression against the sanctity of the embassy is a unilateral and shameful act, and a violation of the Vienna Convention, which protects embassies worldwide," it said.
"This threat is designed to preempt Ecuador's imminent decision on whether it will grant Julian Assange political asylum, and to bully Ecuador into a decision that is agreeable to the United Kingdom and its allies.
"We remind the public that these extraordinary actions are being taken to detain a man who has not been charged with any crime in any country," it added.
A British Foreign Office spokesman has said police were ready to arrest Assange for breaching the terms of his bail granted in 2010.
"The UK has a legal obligation to extradite Mr Assange to Sweden to face questioning over allegations of sexual offenses and we remain determined to fulfill this obligation," the spokesman said in London.
WikiLeaks noted that the tougher stance by London coincided with British Foreign Secretary William Hague standing in for Prime Minister David Cameron while he was on vacation.
It claimed Hague's department, the Foreign and Commonwealth Office, had overseen the negotiations to date with Ecuador.
"If Mr Hague has, as would be expected, approved this decision, WikiLeaks calls for his immediate resignation," it said.
Assange's mother earlier Thursday claimed the United States was behind the British threat.
"What the US wants, the US gets from its allies, regardless of if it's legal or if it's ethical or in breach of human or legal rights," she told reporters in Australia.
Patino said Ecuador "has made a decision" on whether to grant Assange asylum and would announce it at 1200 GMT Thursday.
Source: Times Live
"WikiLeaks condemns in the strongest possible terms the UK's resort to intimidation," it said in a statement.
"A threat of this nature is a hostile and extreme act, which is not proportionate to the circumstances, and an unprecedented assault on the rights of asylum-seekers worldwide."
WikiLeaks founder Julian Assange, an Australian national, has been in the embassy since June in a bid to avoid extradition to Sweden, where he faces questioning over sex assault claims.
The Australian fears Stockholm will turn him over to the United States where he could face espionage and conspiracy charges over revelations by his website.
Ecuador Foreign Minister Ricardo Patino earlier said Britain had threatened to "storm our embassy if Ecuador does not hand over Julian Assange".
WikiLeaks said the embassy was currently surrounded by police "in a menacing show of force".
"Any transgression against the sanctity of the embassy is a unilateral and shameful act, and a violation of the Vienna Convention, which protects embassies worldwide," it said.
"This threat is designed to preempt Ecuador's imminent decision on whether it will grant Julian Assange political asylum, and to bully Ecuador into a decision that is agreeable to the United Kingdom and its allies.
"We remind the public that these extraordinary actions are being taken to detain a man who has not been charged with any crime in any country," it added.
A British Foreign Office spokesman has said police were ready to arrest Assange for breaching the terms of his bail granted in 2010.
"The UK has a legal obligation to extradite Mr Assange to Sweden to face questioning over allegations of sexual offenses and we remain determined to fulfill this obligation," the spokesman said in London.
WikiLeaks noted that the tougher stance by London coincided with British Foreign Secretary William Hague standing in for Prime Minister David Cameron while he was on vacation.
It claimed Hague's department, the Foreign and Commonwealth Office, had overseen the negotiations to date with Ecuador.
"If Mr Hague has, as would be expected, approved this decision, WikiLeaks calls for his immediate resignation," it said.
Assange's mother earlier Thursday claimed the United States was behind the British threat.
"What the US wants, the US gets from its allies, regardless of if it's legal or if it's ethical or in breach of human or legal rights," she told reporters in Australia.
Patino said Ecuador "has made a decision" on whether to grant Assange asylum and would announce it at 1200 GMT Thursday.
Source: Times Live
Bradley Manning defense files motion to dismiss charges over pre-trial abuse
The defense attorney of accused Army whistleblower Bradley Manning filed a 110-page motion on July 27 requesting that all charges against the soldier be dismissed. The motion was made on the basis of Article 13 of the Uniform Code of Military Justice, which bans “punishment or penalty other than arrest or confinement upon the charges pending against [a detainee].”
Manning’s lead attorney, David Coombs, wrote that “[t]he defense does not believe that there has ever been such an egregious case of unlawful pretrial punishment in Army history. This court needs to send a message that an unlawful order to keep a pretrial detainee in the equivalent of solitary confinement for almost nine months cannot—and will not—be tolerated."
Article 13 states that unnecessary pre-trial punishment is grounds for dismissal of charges.
Coombs also filed a motion of continuance based on the government’s withholding of 84 emails that reveal high-ranking Armed Forces complicity in ordering the mistreatment of Manning. The emails reveal that at least one three-star general specifically ordered Manning’s unbearable conditions, which some argue violate the “cruel and unusual punishment” clause of the Constitution’s Fifth Amendment.
As Coombs points out in his continuance filing, government officials withheld the emails until 9:15 p.m. on the night of July 26—less than three hours before the deadline to file an Article 13 motion—despite the court’s previously elaborated requirement that all documentation that is “obviously material to the preparation of the defense” be made available.
The military judge overseeing the hearings will almost certainly not dismiss the charges. Regardless of legal precedent, the Obama administration is determined to ruin Manning’s life for helping make public over 700,000 files that serve as evidence to the crimes of US imperialism.
The force with which the government is attacking Manning expresses its nervousness, as well as its resolve to prevent future leaks that may jeopardize attempts to maintain and expand its geo-political domination. Prosecutors are seemingly using any archaic, anti-democratic charge on the books in an attempt to destroy the young man.
The 34 counts being brought against Manning read as a laundry list of state despotism, from “treason”, “aiding the enemy” and “embezzlement and theft”, to “sedition”, and “espionage”. Government prosecutors are backing up these absurd claims with some of the most anti-democratic legal precedents of the past century, including the Espionage Act of 1917, the Subversive Activities Control Act of 1950, the Computer Fraud and Abuse Act, and the PATRIOT Act.
All the while, Manning remains in military custody. Though it has been over two years since he was arrested in May, 2010, the court has denied previous motions filed by the defense claiming that Manning’s Sixth Amendment right to a speedy trial has been violated.
The Article 13 motion filed in July highlights the terrible conditions Manning has faced while in military custody.
The motion quotes UN Special Rapporteur on Torture Juan Mendez, who strongly criticized the US government’s treatment of Manning in an interview with the Guardian in March. “I conclude that the 11 months under conditions of solitary confinement,” Mendez said, “…constitutes at minimum cruel, inhuman, and degrading treatment in violation of Article 16 of the [UN] Convention Against Torture.”
Mendez was referring to the nearly one year that Manning spent in Quantico, Virginia, from July 2010 to April 2011. During this period, Manning was kept in a six- by eight-foot cell for 23 to 24 hours a day.
Forced by guards to stay awake between 5:00 a.m. and 10:00 p.m. each day, Manning was also denied the right to exercise in his cell, use the cell walls as a backrest, or lie down at any point during the daytime.
For six months, Manning was given only 20 minutes of “sunshine call” per day, during which time he was told to walk in lace-less shoes, with shackles on his ankles and wrists and a guard’s hand on his back.
Manning was also forced to sleep naked and to stand naked in front of multiple guards at parade rest position. Guards sometimes took away Manning’s glasses and forced him to reply in the affirmative when they “checked on him” at five-minute intervals.
Manning’s overseers justified this cruel treatment as necessary to prevent Manning from inflicting harm upon himself or others. This argument carries no weight, as several military psychologists and hundreds of law professors have explained.
The Article 13 motion highlights the baseless nature of this claim by quoting interactions between psychiatrists and military officials.
When military psychiatrists recommended better treatment for Manning, an official reportedly replied, “We’ll do whatever we want to do. You [the psychiatrists] make your recommendation and I have to make a decision based on everything else.”
The psychiatrist responded, “Then don’t say it’s based on mental health. You can say it’s MAX [maximum] custody, but just don’t say that we’re somehow involved in this,” to which the senior officer said, “That’s what we’re going to do.”
Multiple military psychiatrists had been recommending that Manning be downgraded from POI [prevention of injury] status for months, according to the motion. Psychiatrists tried to explain to overseers that “[Manning] did not present a risk to himself and that the POI status was actually causing PFC Manning psychological harm.”
Furthermore, there is little legal framework to support Manning’s POI status, according to a letter written by 300 law professors in 2011.
“The administration has provided no evidence that Manning’s treatment reflects a concern for his own safety or that of other inmates,” the letter states. “Unless and until it does so, there is only one reasonable inference: this pattern of degrading treatment aims either to deter future whistleblowers, or to force Manning to implicate WikiLeaks founder Julian Assange in a conspiracy, or both.”
The trial has been wrought with possible grounds for dismissal of charges. In April of 2011, president Obama made comments that provided grounds for dismissal based on Article 37 of the Uniform Code of Military Justice, which protects against Unlawful Command Influence.
The president, revealing his disdain for the legal process, explained to a crowd that he did not need to wait for the verdict to pronounce guilt: “We’re a nation of laws,” the president said. “We don’t individually make our own decisions about how the laws operate… [Manning] broke the law.”
The comments are not only hypocritical coming from a president that has established his “right” to indefinitely detain and assassinate anyone, including American citizens, without a warrant. They may also serve as a basis for an argument for dismissal of charges against Manning.
According to Article 37 of UCMJ, “Unlawful Command Influence occurs when senior personnel, wittingly or unwittingly, have acted to influence court members, witnesses, or others participating in military justice cases. Such unlawful influence not only jeopardizes the validity of the judicial process, it undermines the morale of military members, their respect for the chain of command, and public confidence in the military.”
The court, however, has failed to dismiss charges based on Unlawful Command Influence.
Manning’s prosecution is being carried out in flagrant violation of basic constitutional rights and to legal precedent that does not serve the Obama administration. The information revealed in the Article 13 and continuance motions of July 26 serve as further proof that the minds of the decision makers have already been made up and that the trial is little more than an anti-democratic witch-hunt.
Source: World Socialist Web Site
Manning’s lead attorney, David Coombs, wrote that “[t]he defense does not believe that there has ever been such an egregious case of unlawful pretrial punishment in Army history. This court needs to send a message that an unlawful order to keep a pretrial detainee in the equivalent of solitary confinement for almost nine months cannot—and will not—be tolerated."
Article 13 states that unnecessary pre-trial punishment is grounds for dismissal of charges.
Coombs also filed a motion of continuance based on the government’s withholding of 84 emails that reveal high-ranking Armed Forces complicity in ordering the mistreatment of Manning. The emails reveal that at least one three-star general specifically ordered Manning’s unbearable conditions, which some argue violate the “cruel and unusual punishment” clause of the Constitution’s Fifth Amendment.
As Coombs points out in his continuance filing, government officials withheld the emails until 9:15 p.m. on the night of July 26—less than three hours before the deadline to file an Article 13 motion—despite the court’s previously elaborated requirement that all documentation that is “obviously material to the preparation of the defense” be made available.
The military judge overseeing the hearings will almost certainly not dismiss the charges. Regardless of legal precedent, the Obama administration is determined to ruin Manning’s life for helping make public over 700,000 files that serve as evidence to the crimes of US imperialism.
The force with which the government is attacking Manning expresses its nervousness, as well as its resolve to prevent future leaks that may jeopardize attempts to maintain and expand its geo-political domination. Prosecutors are seemingly using any archaic, anti-democratic charge on the books in an attempt to destroy the young man.
The 34 counts being brought against Manning read as a laundry list of state despotism, from “treason”, “aiding the enemy” and “embezzlement and theft”, to “sedition”, and “espionage”. Government prosecutors are backing up these absurd claims with some of the most anti-democratic legal precedents of the past century, including the Espionage Act of 1917, the Subversive Activities Control Act of 1950, the Computer Fraud and Abuse Act, and the PATRIOT Act.
All the while, Manning remains in military custody. Though it has been over two years since he was arrested in May, 2010, the court has denied previous motions filed by the defense claiming that Manning’s Sixth Amendment right to a speedy trial has been violated.
The Article 13 motion filed in July highlights the terrible conditions Manning has faced while in military custody.
The motion quotes UN Special Rapporteur on Torture Juan Mendez, who strongly criticized the US government’s treatment of Manning in an interview with the Guardian in March. “I conclude that the 11 months under conditions of solitary confinement,” Mendez said, “…constitutes at minimum cruel, inhuman, and degrading treatment in violation of Article 16 of the [UN] Convention Against Torture.”
Mendez was referring to the nearly one year that Manning spent in Quantico, Virginia, from July 2010 to April 2011. During this period, Manning was kept in a six- by eight-foot cell for 23 to 24 hours a day.
Forced by guards to stay awake between 5:00 a.m. and 10:00 p.m. each day, Manning was also denied the right to exercise in his cell, use the cell walls as a backrest, or lie down at any point during the daytime.
For six months, Manning was given only 20 minutes of “sunshine call” per day, during which time he was told to walk in lace-less shoes, with shackles on his ankles and wrists and a guard’s hand on his back.
Manning was also forced to sleep naked and to stand naked in front of multiple guards at parade rest position. Guards sometimes took away Manning’s glasses and forced him to reply in the affirmative when they “checked on him” at five-minute intervals.
Manning’s overseers justified this cruel treatment as necessary to prevent Manning from inflicting harm upon himself or others. This argument carries no weight, as several military psychologists and hundreds of law professors have explained.
The Article 13 motion highlights the baseless nature of this claim by quoting interactions between psychiatrists and military officials.
When military psychiatrists recommended better treatment for Manning, an official reportedly replied, “We’ll do whatever we want to do. You [the psychiatrists] make your recommendation and I have to make a decision based on everything else.”
The psychiatrist responded, “Then don’t say it’s based on mental health. You can say it’s MAX [maximum] custody, but just don’t say that we’re somehow involved in this,” to which the senior officer said, “That’s what we’re going to do.”
Multiple military psychiatrists had been recommending that Manning be downgraded from POI [prevention of injury] status for months, according to the motion. Psychiatrists tried to explain to overseers that “[Manning] did not present a risk to himself and that the POI status was actually causing PFC Manning psychological harm.”
Furthermore, there is little legal framework to support Manning’s POI status, according to a letter written by 300 law professors in 2011.
“The administration has provided no evidence that Manning’s treatment reflects a concern for his own safety or that of other inmates,” the letter states. “Unless and until it does so, there is only one reasonable inference: this pattern of degrading treatment aims either to deter future whistleblowers, or to force Manning to implicate WikiLeaks founder Julian Assange in a conspiracy, or both.”
The trial has been wrought with possible grounds for dismissal of charges. In April of 2011, president Obama made comments that provided grounds for dismissal based on Article 37 of the Uniform Code of Military Justice, which protects against Unlawful Command Influence.
The president, revealing his disdain for the legal process, explained to a crowd that he did not need to wait for the verdict to pronounce guilt: “We’re a nation of laws,” the president said. “We don’t individually make our own decisions about how the laws operate… [Manning] broke the law.”
The comments are not only hypocritical coming from a president that has established his “right” to indefinitely detain and assassinate anyone, including American citizens, without a warrant. They may also serve as a basis for an argument for dismissal of charges against Manning.
According to Article 37 of UCMJ, “Unlawful Command Influence occurs when senior personnel, wittingly or unwittingly, have acted to influence court members, witnesses, or others participating in military justice cases. Such unlawful influence not only jeopardizes the validity of the judicial process, it undermines the morale of military members, their respect for the chain of command, and public confidence in the military.”
The court, however, has failed to dismiss charges based on Unlawful Command Influence.
Manning’s prosecution is being carried out in flagrant violation of basic constitutional rights and to legal precedent that does not serve the Obama administration. The information revealed in the Article 13 and continuance motions of July 26 serve as further proof that the minds of the decision makers have already been made up and that the trial is little more than an anti-democratic witch-hunt.
Source: World Socialist Web Site
Muslim group tells judge Islam is no 'sea monster'
A Muslim rights group criticised a federal judge, complaining he had compared the civil liberties of Muslim Americans to a “hideous sea monster”. He made the remark while tossing out a lawsuit over the infiltration of California mosques by an FBI informant.
US District Judge Cormac Carney dismissed the lawsuit on Tuesday, which charged that the undercover FBI informant had violated civil liberties of US Muslims by spying on them, ruling that allowing the case to proceed could risk disclosure of government secrets.
In his 36-page order, Carney invoked the fictional Greek hero Odysseus, who was forced to sail his ship between a six-headed sea monster and a dangerous whirlpool during an epic voyage home from the Trojan War. “Odysseus opted to pass by the monster and risk a few of his individual sailors, rather than hazard the loss of his entire ship to the sucking whirlpool,” Carney wrote. “Similarly, the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security.”
Carney allowed the case to go forward only against five current or former agents named as individual defendants, who the plaintiffs claim violated the Foreign Intelligence Surveillance Act. Plaintiffs attorneys have said they will appeal.
“Our civil liberties are not a hideous sea monster, but they are instead the most stalwart defence against the real threats of tyranny and oppression,” Ameena Mirza Qazi, deputy executive director for the Council on American-Islamic Relations (CAIR), said in a written statement.
The lawsuit, jointly filed by CAIR and the American Civil Liberties Union last year in US District Court in Santa Ana, said the FBI sent undercover informant Craig Monteilh into Orange County mosques to collect personal information on hundreds, or possibly thousands, of Muslims.
According to the suit, Monteilh took hundreds of hours of surreptitious video and audio recordings of religious lectures, classes, cultural events and other meetings in 2006 and 2007 as part of a counterterrorism investigation, known as “Operation Flex,” that did not produce a single conviction.
“It is deeply troubling that the prisoners at Guantanamo Bay have more access to judicial review than US citizens,” plaintiffs attorney Reem Salahi said. “Where plaintiffs and the informant himself describe act after act of illegal government surveillance, the government should not be allowed to skirt liability by using its wild card — state secrets.”
The FBI and US Department of Justice declined to comment on Wednesday. The FBI has acknowledged in court documents that Monteilh was used as a confidential informant during the operation but denies any wrongdoing, saying it took reasonable measures to investigate credible evidence of possible terrorist activity.
Carney wrote in his ruling that he did not reach the decision lightly and conducted a careful review of classified government filings with “a skeptical eye” before ruling.
Source: Times Live
US District Judge Cormac Carney dismissed the lawsuit on Tuesday, which charged that the undercover FBI informant had violated civil liberties of US Muslims by spying on them, ruling that allowing the case to proceed could risk disclosure of government secrets.
In his 36-page order, Carney invoked the fictional Greek hero Odysseus, who was forced to sail his ship between a six-headed sea monster and a dangerous whirlpool during an epic voyage home from the Trojan War. “Odysseus opted to pass by the monster and risk a few of his individual sailors, rather than hazard the loss of his entire ship to the sucking whirlpool,” Carney wrote. “Similarly, the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security.”
Carney allowed the case to go forward only against five current or former agents named as individual defendants, who the plaintiffs claim violated the Foreign Intelligence Surveillance Act. Plaintiffs attorneys have said they will appeal.
“Our civil liberties are not a hideous sea monster, but they are instead the most stalwart defence against the real threats of tyranny and oppression,” Ameena Mirza Qazi, deputy executive director for the Council on American-Islamic Relations (CAIR), said in a written statement.
The lawsuit, jointly filed by CAIR and the American Civil Liberties Union last year in US District Court in Santa Ana, said the FBI sent undercover informant Craig Monteilh into Orange County mosques to collect personal information on hundreds, or possibly thousands, of Muslims.
According to the suit, Monteilh took hundreds of hours of surreptitious video and audio recordings of religious lectures, classes, cultural events and other meetings in 2006 and 2007 as part of a counterterrorism investigation, known as “Operation Flex,” that did not produce a single conviction.
“It is deeply troubling that the prisoners at Guantanamo Bay have more access to judicial review than US citizens,” plaintiffs attorney Reem Salahi said. “Where plaintiffs and the informant himself describe act after act of illegal government surveillance, the government should not be allowed to skirt liability by using its wild card — state secrets.”
The FBI and US Department of Justice declined to comment on Wednesday. The FBI has acknowledged in court documents that Monteilh was used as a confidential informant during the operation but denies any wrongdoing, saying it took reasonable measures to investigate credible evidence of possible terrorist activity.
Carney wrote in his ruling that he did not reach the decision lightly and conducted a careful review of classified government filings with “a skeptical eye” before ruling.
Source: Times Live
Monday, April 2, 2012
National Security Secrecy and Surveillance: Defending the Public's Right to Know
The scale of government secrecy and surveillance has surpassed all previous boundaries—especially in the national security arena, where the budgets, size and scope of intelligence agencies have ballooned since 9/11. Unprecedented secrecy is largely evading traditional oversight mechanisms, leaving policy makers, the media, and the public in the dark.
What impact are secret governmental operations having on our democratic processes, and are the decisions that are being made behind closed doors helping or harming our national security? What tools are available to penetrate this secrecy, foster a new culture of government accountability, and impose enforceable constraints on intrusive surveillance of innocent Americans?
These questions will be explored by a distinguished panel consisting of high-profile government whistleblowers, key plaintiffs and litigators from headline Freedom of Information Act cases, and expert journalists who have followed the evolution of the national security state for years. Each will offer insights informed by their own direct encounters with national security secrecy and surveillance.
Source: Open Society Foundations
What impact are secret governmental operations having on our democratic processes, and are the decisions that are being made behind closed doors helping or harming our national security? What tools are available to penetrate this secrecy, foster a new culture of government accountability, and impose enforceable constraints on intrusive surveillance of innocent Americans?
These questions will be explored by a distinguished panel consisting of high-profile government whistleblowers, key plaintiffs and litigators from headline Freedom of Information Act cases, and expert journalists who have followed the evolution of the national security state for years. Each will offer insights informed by their own direct encounters with national security secrecy and surveillance.
Source: Open Society Foundations
Selling horse droppings as figs
In Afrikaans we have a striking saying describing rather accurately what the keepers of secrets (yes, the spies and double agents and professional liars in the intelligence agencies) are trying to do with its latest range of advertisements promoting the Secrecy Bill:
Apart from the fact that the government is not supposed to promote a Bill currently still serving before Parliament and not yet passed into law (as Parliament is currently seized of this matter, and the executive has no truck with the Bill until it is actually passed and becomes law), the advertisements are about as honest and truthful as your average Senior Manager at the Department of Public Works testifying at the Bheki Cele Inquiry.
The thing is, the Secrecy Bill has absolutely nothing to do with identity theft and neither has it anything to do with people fraudulently collecting pensions if they are not entitled to do so. Although section 8 and 9 of the Secrecy Bill deals with the protection of valuable information (which could include personal information about one’s ID held by the state), and although these sections state that such information warrants “a degree of protection and administrative control and must be handled with due care and only in accordance with authorised procedures”, the Bill does not actually criminalise the selling of your ID by a state official and is in no way dealing with identity theft. What a very small part of the Bill does (about 4 of the more than 50 clauses in the Bill) is that it prohibits any person from unlawfully and intentionally destroying, removing, altering or erasing valuable information.
A state official would therefore be punished in terms of this Bill if he or she deleted your ID information from the government database. What the Bill would not deal with at all is identity theft or pension fraud. The law already punishes fraudulent selling of your ID information to others as well as pension fraud, and this Bill has absolutely nothing to do with that. In other words this advert is deceitful and dishonest. This is perhaps not surprising, as the adverts were cooked up by the very spies who, we are told, we should trust with decisions about the need to classify state documents as secret or top secret. I would not trust these people when they tell me what the weather will be like tomorrow – let alone with these decisions that may well hide serious criminality and corruption. (General Mduli, are you there?)
Ironically, what the adverts do, is to illustrate beyond all doubt why this Bill is so dangerous. If these people are prepared to deceive the public so blatantly and openly, why would they not lie to us about the existence of wrongly and unlawfully classified documents which we might need to get access to in order to expose corruption or in order to expose the blatant flaunting of the law and undermining of our democracy by the intelligence services?
The “safeguards” in the Bill which the advert talks about are therefore illusory. If it is a criminal offense to be in possession of a classified document, and if one tries to get access to a wrongly classified document, the spies will merely claim that the document does not exist, finish en klaar. If one then claims to have seen the document, one will be arrested and charged for possessing a classified document and to admitting to having committed a crime and one could be sentenced to a long period in jail for possessing even an illegally classified document.
It is true that section 43 of the Bill states that a person who is protected by the Protected Disclosures Act may disclose documents despite any provisions in the Bill, which means that a very brave (some would say very stupid) state employee who discovers documents demonstrating criminal activity or corruption by the intelligence services, may leak such documents to, say, the Public Protector.
What the advert does not say is that the Public Protector will then immediately have to take the leaked documents showing serious criminal activity to the nearest Police Station where one of Richard Mduli’s cronies will be able to receive the document and “deal” with it to protect the intelligence services and those exposed as criminals or crooks in the documents. The Public Protector can then try and get access to the document via various means and after several years – and assuming rather optimistically – that the document had not been “lost” (in other words, destroyed), she might finally get access to that document – long after the crime was committed and the cover up effectively instituted, the witnesses “disappeared” or intimidated into silence or packed off to Tjikitjikistan as the undersecretary of culture.
Moreover, the advert seems to suggest that all active citizens are really no more than potential criminals, suggesting how the paranoid spies view us ordinary citizens. It says that the state has to protect its information from criminals, but it is exactly the kinds of information that we need as citizens that we will be “protected” from accessing. We will not ever again be able to know that intelligence services had concocted another Browse Mole Report to discredit the enemies of the sitting President. We will not ever again be able to know that the spies had taped telephone conversations between politicians or between NPA members. We will not know that senior ANC leaders have been spied on by the intelligence services because the President thought that these leaders might pose a threat to his political ambitions.
Of course, the adverts also display the kind of paranoia that is familiar to students of any fascist police state. Hence it suggests that we need to protect state secrets because if any of these secrets held by the state are ever released, our very freedom (the freedom curtailed by this Bill) will be threatened. Now, I for one cannot imagine what secrets the spies are keeping that are so earthshattering that it would threaten the very life of our nation and our Constitution if it were to be made public. Could it be information about financial donations made by foreign dictators to the President or the governing party? Information about the sex-lives of politicians illegally spied upon by the intelligence services on instructions from the President? Maybe there are documents proving that our spies are plotting to assassinate the President of the United States, which, if revealed, could lead to a US military invasion.
But I doubt that any of these documents exist and even if they did, we will be protected by its disclosure (and disclosure of the unlawful actions by the intelligence services who might have compiled these documents illegally), not by keeping them secret.
This Bill is about protecting the intelligence services and drawing a veil of secrecy over their often unlawful activities in order to enhance the powers of the spies, create a police state within a state and protect the leadership of the incumbent faction inside the ANC from embarrassment and from being ousted in quasi-democratic party elections. It is not about freedom but un-freedom, not about democracy but a threat to our democracy.
If you believe otherwise, I am sure you will also believe me when I say that you should please send me all your banking details (including password) immediately so that I can transfer a few million dollars into your account, which I will do because I need your assistance with transferring fabulous amounts of money into South Africa.
Source: Pierre de Vos: Constitutionally Speaking
“Hulle will ons nou wysmaak dat perdedrolle, vye is”. (“Now they want to convince us that horse droppings are really figs.”)
Apart from the fact that the government is not supposed to promote a Bill currently still serving before Parliament and not yet passed into law (as Parliament is currently seized of this matter, and the executive has no truck with the Bill until it is actually passed and becomes law), the advertisements are about as honest and truthful as your average Senior Manager at the Department of Public Works testifying at the Bheki Cele Inquiry.
Female Voice: “Are you following the whole debate about this new law everyone is talking about? Something about state information?”
Male Voice: “Yes. And I see why government worries. All this stuff about identity theft, people being long dead but collecting pensions, the list is endless.”
Female Voice: “But what about corruption? How will the government deal with that?”
Male Voice: “The bill makes it clear that if people try to cover up corruption they will go to jail for up to 15 years, and whistleblowers will be protected.”
Female Voice: “That’s good. But will we still be able to get the information we need from the government?”
Male Voice: “Yes. Our constitution gives us that right. As for the press, the bill doesn’t suppress press freedom at all. When you want information that is classified, you just have to apply for it. If you are still not happy, you can go to court and the judge will decide if it is in everyone’s interest.”
Female Voice: “Yes, sounds reasonable.”
Male Voice: “The thing is that government has to protect its information from criminals. There are spies out there that want to steal our information to develop their own countries at our expense.”
Female Voice: “I see. I want to familiarise myself with the bill more. There’s so much I didn’t know.”
Male Voice: “Great, ‘cause it’s really important that government protects its information. It is about protecting our country and its hard-won freedom. Ensuring that we all live in peace, security and prosperity.”
The thing is, the Secrecy Bill has absolutely nothing to do with identity theft and neither has it anything to do with people fraudulently collecting pensions if they are not entitled to do so. Although section 8 and 9 of the Secrecy Bill deals with the protection of valuable information (which could include personal information about one’s ID held by the state), and although these sections state that such information warrants “a degree of protection and administrative control and must be handled with due care and only in accordance with authorised procedures”, the Bill does not actually criminalise the selling of your ID by a state official and is in no way dealing with identity theft. What a very small part of the Bill does (about 4 of the more than 50 clauses in the Bill) is that it prohibits any person from unlawfully and intentionally destroying, removing, altering or erasing valuable information.
A state official would therefore be punished in terms of this Bill if he or she deleted your ID information from the government database. What the Bill would not deal with at all is identity theft or pension fraud. The law already punishes fraudulent selling of your ID information to others as well as pension fraud, and this Bill has absolutely nothing to do with that. In other words this advert is deceitful and dishonest. This is perhaps not surprising, as the adverts were cooked up by the very spies who, we are told, we should trust with decisions about the need to classify state documents as secret or top secret. I would not trust these people when they tell me what the weather will be like tomorrow – let alone with these decisions that may well hide serious criminality and corruption. (General Mduli, are you there?)
Ironically, what the adverts do, is to illustrate beyond all doubt why this Bill is so dangerous. If these people are prepared to deceive the public so blatantly and openly, why would they not lie to us about the existence of wrongly and unlawfully classified documents which we might need to get access to in order to expose corruption or in order to expose the blatant flaunting of the law and undermining of our democracy by the intelligence services?
The “safeguards” in the Bill which the advert talks about are therefore illusory. If it is a criminal offense to be in possession of a classified document, and if one tries to get access to a wrongly classified document, the spies will merely claim that the document does not exist, finish en klaar. If one then claims to have seen the document, one will be arrested and charged for possessing a classified document and to admitting to having committed a crime and one could be sentenced to a long period in jail for possessing even an illegally classified document.
It is true that section 43 of the Bill states that a person who is protected by the Protected Disclosures Act may disclose documents despite any provisions in the Bill, which means that a very brave (some would say very stupid) state employee who discovers documents demonstrating criminal activity or corruption by the intelligence services, may leak such documents to, say, the Public Protector.
What the advert does not say is that the Public Protector will then immediately have to take the leaked documents showing serious criminal activity to the nearest Police Station where one of Richard Mduli’s cronies will be able to receive the document and “deal” with it to protect the intelligence services and those exposed as criminals or crooks in the documents. The Public Protector can then try and get access to the document via various means and after several years – and assuming rather optimistically – that the document had not been “lost” (in other words, destroyed), she might finally get access to that document – long after the crime was committed and the cover up effectively instituted, the witnesses “disappeared” or intimidated into silence or packed off to Tjikitjikistan as the undersecretary of culture.
Moreover, the advert seems to suggest that all active citizens are really no more than potential criminals, suggesting how the paranoid spies view us ordinary citizens. It says that the state has to protect its information from criminals, but it is exactly the kinds of information that we need as citizens that we will be “protected” from accessing. We will not ever again be able to know that intelligence services had concocted another Browse Mole Report to discredit the enemies of the sitting President. We will not ever again be able to know that the spies had taped telephone conversations between politicians or between NPA members. We will not know that senior ANC leaders have been spied on by the intelligence services because the President thought that these leaders might pose a threat to his political ambitions.
Of course, the adverts also display the kind of paranoia that is familiar to students of any fascist police state. Hence it suggests that we need to protect state secrets because if any of these secrets held by the state are ever released, our very freedom (the freedom curtailed by this Bill) will be threatened. Now, I for one cannot imagine what secrets the spies are keeping that are so earthshattering that it would threaten the very life of our nation and our Constitution if it were to be made public. Could it be information about financial donations made by foreign dictators to the President or the governing party? Information about the sex-lives of politicians illegally spied upon by the intelligence services on instructions from the President? Maybe there are documents proving that our spies are plotting to assassinate the President of the United States, which, if revealed, could lead to a US military invasion.
But I doubt that any of these documents exist and even if they did, we will be protected by its disclosure (and disclosure of the unlawful actions by the intelligence services who might have compiled these documents illegally), not by keeping them secret.
This Bill is about protecting the intelligence services and drawing a veil of secrecy over their often unlawful activities in order to enhance the powers of the spies, create a police state within a state and protect the leadership of the incumbent faction inside the ANC from embarrassment and from being ousted in quasi-democratic party elections. It is not about freedom but un-freedom, not about democracy but a threat to our democracy.
If you believe otherwise, I am sure you will also believe me when I say that you should please send me all your banking details (including password) immediately so that I can transfer a few million dollars into your account, which I will do because I need your assistance with transferring fabulous amounts of money into South Africa.
Source: Pierre de Vos: Constitutionally Speaking
Friday, March 30, 2012
Presidency denies Mdluli link
"The president has nothing to do with the Mdluli investigation,
it is an internal matter within the SA Police Service," the presidency said in a
statement. Earlier in the day, the Mail & Guardian reported that
information in a secret document showed Zuma played a role in getting Mdluli's
job back after he was suspended last year.
Allegations included that Zuma personally called Inspector-General of Intelligence Faith Radebe to question her decision to refer criminal charges to the National Prosecuting Authority (NPA) to investigate Mdluli. It also alleged that Zuma attended a celebratory party which Mdluli allegedly hosted to celebrate the withdrawal of charges against him in December last year. "These reports are a complete fabrication. The president has never called IG Radebe at any point, and anyone who says he did must produce evidence," the presidency said. "The president knows nothing about a Mdluli celebratory party and never attended such a party."
Mdluli was suspended in May last year after murder charges were laid against him. Following this, fresh charges relating to fraud and corruption in the abuse of crime intelligence funds were levelled at him. However these were provisionally withdrawn in December. In February this year, the NPA announced that the best way to deal with the murder charges against Mdluli was through a formal inquest, not a trial. Earlier this week, Mdluli's suspension was lifted. Police declined to give reasons for this, saying it was an internal matter that would not be discussed in the public domain.
Source: Times Live
Allegations included that Zuma personally called Inspector-General of Intelligence Faith Radebe to question her decision to refer criminal charges to the National Prosecuting Authority (NPA) to investigate Mdluli. It also alleged that Zuma attended a celebratory party which Mdluli allegedly hosted to celebrate the withdrawal of charges against him in December last year. "These reports are a complete fabrication. The president has never called IG Radebe at any point, and anyone who says he did must produce evidence," the presidency said. "The president knows nothing about a Mdluli celebratory party and never attended such a party."
Mdluli was suspended in May last year after murder charges were laid against him. Following this, fresh charges relating to fraud and corruption in the abuse of crime intelligence funds were levelled at him. However these were provisionally withdrawn in December. In February this year, the NPA announced that the best way to deal with the murder charges against Mdluli was through a formal inquest, not a trial. Earlier this week, Mdluli's suspension was lifted. Police declined to give reasons for this, saying it was an internal matter that would not be discussed in the public domain.
Source: Times Live
Monday, March 12, 2012
Global Media Watchdog Names Enemies of Internet
PARIS (AP) — The Arab Spring is changing the face of Internet freedom, according to Reporters Without Borders, which released its latest “Enemies of the Internet” list Monday. The annual report classifies as “enemies” countries that severely curtail freedom of expression on and access to the Web. It also draws up a list of states “under surveillance. The group added Bahrain to its enemies list, citing a news blackout and harassment of bloggers in an attempt to quell a yearlong Shiite-led rebellion against the Sunni monarchy. The country had previously been under surveillance.
Reporters Without Borders criticized Australia for persuading Internet service providers to create a national content-filtering system, which blocks access to child pornography sites and others deemed inappropriate. The group is concerned that the government is still also pursuing a system of mandatory content-filtering whose criteria are “very broad.”
France landed on the surveillance list last year for a series of criminal indictments of journalists for stories they wrote. It remains on the list this year because of a law that could punish people who repeatedly illegally download content by cutting off their Internet access.
Source: Time
“Bahrain offers a perfect example of successful crackdowns, with an information blackout achieved through an impressive arsenal of repressive measures: exclusion of the foreign media, harassment of human rights defenders, arrests of bloggers and netizens (one of whom died behind bars), prosecutions and defamation campaigns against free expression activists, disruption of communications,” the Paris-based group’s report said.But the Arab Spring – the name given to a cascade of revolts across the Arab world – has also led to the opening up of some regimes. Libya, where the repressive rule of Moammar Gadhafi was thrown off in a violent revolt, was removed from the list of countries under surveillance.
“In Libya, many challenges remain but the overthrow of the Gadhafi regime has ended an era of censorship,” the report said.The group said that the Arab Spring had also highlighted the importance of the Internet – and therefore the importance of protecting access to and expression on it.
“The Internet and social networks have been conclusively established as tools for protest, campaigning and circulating information, and as vehicles for freedom,” the group said. “More than ever before, online freedom of expression is now a major foreign and domestic policy issue.”The enemies list contains countries that are well known for blocking Internet content, like China, Myanmar and North Korea. But the list of those under surveillance contains some surprises like Australia and France.
Reporters Without Borders criticized Australia for persuading Internet service providers to create a national content-filtering system, which blocks access to child pornography sites and others deemed inappropriate. The group is concerned that the government is still also pursuing a system of mandatory content-filtering whose criteria are “very broad.”
France landed on the surveillance list last year for a series of criminal indictments of journalists for stories they wrote. It remains on the list this year because of a law that could punish people who repeatedly illegally download content by cutting off their Internet access.
Source: Time
Friday, November 11, 2011
Dysfunctional record-keeping keeps watchdog groups and the media in the dark.
Chaotic record-keeping in the North and South Gauteng High Courts -- the country's busiest -- seriously impede the public's access to information.
Court files go missing, apparently owing to theft in some instances and carelessness in others.
Incorrect numbering and insufficient labelling of names in some cases muddle the system.
And, in sensitive cases, files appear to have been removed from their folders and therefore withheld from members of the public and the media.
The number of cases in the country's busiest court, South Gauteng, has nearly doubled over the past three years -- from 35 000 in 2007 to about 65 000 in 2010 -- but the number of administrative staff has not kept pace.
In an interview for a position at the South Gauteng High Court in April this year, then senior counsel, now Judge Sharise Weiner, told the Judicial Services Commission that conditions at the court were "uninhabitable". She pointed to missing court files as a serious problem.
"When I acted on the last occasion, there was a roll of 90 matters in the unopposed motion court and I think there were about 20 files that had gone missing,” she reportedly told the panel.
Judge complained
A year ago, Judge Kathy Satchwell mentioned the issue of missing court files in a Business Day article describing the appalling conditions at the court, including "archives where records lie in no particular order on shelves and sometimes on the floor; a registrar's office where we are daily advised that court files containing pleadings are 'missing'".
She also complained that there was "inadequate and outdated computer technology".
A plan to digitise court files is being implemented, according to justice and constitutional department spokesperson Tlali Tlali, but it is in its infancy at both courts. The project for both courts is worth R42-million.
A scanning system has begun with the emailing of bulk documents -- but only to attorneys. A senior member of the South Gauteng High Court registrar's office told the Mail & Guardian: "Please bear with us while we try and get this scanning process to work properly."
In response to questions about the chaotic filing system and missing documents, Tlali said the workload of the South Gauteng High Court had increased substantially: "In 2007, the turnover was about 35 000 files, in 2010, the turnover was at least 58 000 files.”
A member of the South Gauteng High Court's administrative staff who has to fetch files for court cases told the M&G: "Files just go missing mysteriously. Motion court rolls are supposed to be numerical. My understanding of a numerical roll is that when it starts at one, then the next number is two, then three, and so on till the end. Not here [at this court].
'Any number'
"Here, you start at any number then end at any other number. Parties are incorrectly cited and case numbers are more often than not wrongly typed on the roll. It's usually better to totally ignore the roll and type and number your own roll. Dockets and files go missing and no one says a word."
To fulfil their watchdog role in society, researchers, nongovernmental organisations, members of the public and journalists need access to court records, such as civil and criminal documents, or title deeds, bonds and antenuptial contracts as recorded by the deeds office.
The Promotion of Access to Information Act of 2000 gives the public the right to access public information.
Public records are available to different degrees in different democracies. In the United States, court documents are online, ensuring easier access for the public.
Pacer
The Public Access to Court Electronic Records (Pacer) is an electronic public access service that allows the American public to obtain case and docket information from federal appellate, district and bankruptcy courts.
A public access fee is charged at US8c a page.
There are about one million Pacer users, including attorneys, government agencies, researchers, financial institutions, the media and the general public.
In South Africa, as the justice department plods towards an electronic access system, investigative reporters continue their uphill battle to access documents.
Amabhungane investigative reporter Heidi Swart (see sidebar) has been trying to access documents regarding the application by the public works department to cancel the Pretoria police lease with property developer Roux Shabangu for the past two months.
She visited the North Gauteng High Court on three separate occasions -- September 22, and 28 and October 18 -- and left empty-handed.
Registrar responds
Senior registrar at the North Gauteng High Court Dave Pietersen responded to her story, saying the file in question was not available to the public at that time as the matter had not yet appeared in court.
"The fact that the file was empty might have been [as a result of the fact] that one of the parties had lifted the contents of the court file for various reasons, which they are entitled to do," he said.
Locating a sensitive file is a case in futility
I arrive at the North Gauteng High Court in Pretoria just before the court archives close for the day at 1pm. About 10 people queue at the counter.
I fill in a form with case particulars: case number 52530/2011, an application by the department of public works to cancel a lease with Roux Shabangu. I reach the front after about 20 minutes. A friendly woman takes the form, disappears and returns. It isn't there. There's no file with that number.
I had tried calling the court earlier to make sure that the papers would be there. But archive staff told me that I had to come there in person if I wanted the file. They could not tell me if it was there.
I try again about a week later. This time, I'm sure that the state attorney's office has filed the papers as I phoned them to check. At the archives, about 30 people are queuing. I fill in another form. A friendly staff member comes to me in the queue and takes my form. He promptly returns with the file. I’m delighted. But then I realise it’s empty. He says he does not know where the papers are and refers me to the help desk.
It's illegal to leave the court building with court papers. But I have to go outside to reach the help desk. That's just the way the building is set up. However, the file is empty, so it should be fine.
I exit the building with the file. I am neither stopped nor searched. I enter the building again and go through all the security checks. The file remains undiscovered.
The woman at the help desk looks blankly at the empty file and asks me whether the case has appeared in court yet. "I don't know," I say.
No number
Well, in that case, she cannot help me, she says. There is no way for her to find out where these papers are. I ask her whether there is a number I can phone in future to prevent futile trips. She informs me that there is not.
I dump the empty file on a stack of other files lying unguarded on the counter at the archives.
Take three. This time, my boss, [Amabhungane managing partner] Sam Sole, has phoned Judge President Bernard Ngoepe. Ngoepe has sent an email to the senior court registrar, Dave Pietersen, to fix the problem, lest the public gain the impression that the court is sitting on information that should be available to all.
I make sure I phone Pietersen before I go to court once again. I am hoping that he will agree to keep the file at his office.
Pietersen tells me in no uncertain terms that he has seen the judge president's email but that the folder I am looking for is not a priority for him. I realise that he will not assist me.
Desperate
This does not bode well. However, I am desperate to get the file, so I head back to court, hoping to find it in the archives.
Again, I grab a form and fall into line at the archive. A man calls some of us to the back into the archive room. Amid swearing and sweating, the man scratches through rows of files. There is a rough numerical order to the files but it is not an exact science. He sends me back outside. When he resurfaces he hands me my form, along with a similar form.
"Your file is not here. Call these people. They took it last."
I look at the second form. I don't know who “Jolandi” is, but I am relieved to have a name and a number.
Then I realise that Jolandi may have returned the file by now. Which would mean it could be anywhere in the twilight zone between her office and the court archives.
Looking for the registrar's office, I get lost. I knock on an open door. The man at the desk seems annoyed. I explain. He says there are two other offices that may have the file. "Would you just come and have a look at this?" he asks, pointing at his computer screen. I fix his MS Word table.
Be persistent
Delighted, he finally makes eye contact. He advises me that I should be persistent when I go to those two offices because sometimes they just don't feel like helping.
Just then I notice that the man at the archives was mistaken. Jolandi doesn’t have my file after all. The file she requested has a different case number. I give up. There's always tomorrow. And the next day. And the next. -- Heidi Swart
Source: Mail & Guardian
Court files go missing, apparently owing to theft in some instances and carelessness in others.
Incorrect numbering and insufficient labelling of names in some cases muddle the system.
And, in sensitive cases, files appear to have been removed from their folders and therefore withheld from members of the public and the media.
The number of cases in the country's busiest court, South Gauteng, has nearly doubled over the past three years -- from 35 000 in 2007 to about 65 000 in 2010 -- but the number of administrative staff has not kept pace.
In an interview for a position at the South Gauteng High Court in April this year, then senior counsel, now Judge Sharise Weiner, told the Judicial Services Commission that conditions at the court were "uninhabitable". She pointed to missing court files as a serious problem.
"When I acted on the last occasion, there was a roll of 90 matters in the unopposed motion court and I think there were about 20 files that had gone missing,” she reportedly told the panel.
Judge complained
A year ago, Judge Kathy Satchwell mentioned the issue of missing court files in a Business Day article describing the appalling conditions at the court, including "archives where records lie in no particular order on shelves and sometimes on the floor; a registrar's office where we are daily advised that court files containing pleadings are 'missing'".
She also complained that there was "inadequate and outdated computer technology".
A plan to digitise court files is being implemented, according to justice and constitutional department spokesperson Tlali Tlali, but it is in its infancy at both courts. The project for both courts is worth R42-million.
A scanning system has begun with the emailing of bulk documents -- but only to attorneys. A senior member of the South Gauteng High Court registrar's office told the Mail & Guardian: "Please bear with us while we try and get this scanning process to work properly."
In response to questions about the chaotic filing system and missing documents, Tlali said the workload of the South Gauteng High Court had increased substantially: "In 2007, the turnover was about 35 000 files, in 2010, the turnover was at least 58 000 files.”
A member of the South Gauteng High Court's administrative staff who has to fetch files for court cases told the M&G: "Files just go missing mysteriously. Motion court rolls are supposed to be numerical. My understanding of a numerical roll is that when it starts at one, then the next number is two, then three, and so on till the end. Not here [at this court].
'Any number'
"Here, you start at any number then end at any other number. Parties are incorrectly cited and case numbers are more often than not wrongly typed on the roll. It's usually better to totally ignore the roll and type and number your own roll. Dockets and files go missing and no one says a word."
To fulfil their watchdog role in society, researchers, nongovernmental organisations, members of the public and journalists need access to court records, such as civil and criminal documents, or title deeds, bonds and antenuptial contracts as recorded by the deeds office.
The Promotion of Access to Information Act of 2000 gives the public the right to access public information.
Public records are available to different degrees in different democracies. In the United States, court documents are online, ensuring easier access for the public.
Pacer
The Public Access to Court Electronic Records (Pacer) is an electronic public access service that allows the American public to obtain case and docket information from federal appellate, district and bankruptcy courts.
A public access fee is charged at US8c a page.
There are about one million Pacer users, including attorneys, government agencies, researchers, financial institutions, the media and the general public.
In South Africa, as the justice department plods towards an electronic access system, investigative reporters continue their uphill battle to access documents.
Amabhungane investigative reporter Heidi Swart (see sidebar) has been trying to access documents regarding the application by the public works department to cancel the Pretoria police lease with property developer Roux Shabangu for the past two months.
She visited the North Gauteng High Court on three separate occasions -- September 22, and 28 and October 18 -- and left empty-handed.
Registrar responds
Senior registrar at the North Gauteng High Court Dave Pietersen responded to her story, saying the file in question was not available to the public at that time as the matter had not yet appeared in court.
"The fact that the file was empty might have been [as a result of the fact] that one of the parties had lifted the contents of the court file for various reasons, which they are entitled to do," he said.
Locating a sensitive file is a case in futility
I arrive at the North Gauteng High Court in Pretoria just before the court archives close for the day at 1pm. About 10 people queue at the counter.
I fill in a form with case particulars: case number 52530/2011, an application by the department of public works to cancel a lease with Roux Shabangu. I reach the front after about 20 minutes. A friendly woman takes the form, disappears and returns. It isn't there. There's no file with that number.
I had tried calling the court earlier to make sure that the papers would be there. But archive staff told me that I had to come there in person if I wanted the file. They could not tell me if it was there.
I try again about a week later. This time, I'm sure that the state attorney's office has filed the papers as I phoned them to check. At the archives, about 30 people are queuing. I fill in another form. A friendly staff member comes to me in the queue and takes my form. He promptly returns with the file. I’m delighted. But then I realise it’s empty. He says he does not know where the papers are and refers me to the help desk.
It's illegal to leave the court building with court papers. But I have to go outside to reach the help desk. That's just the way the building is set up. However, the file is empty, so it should be fine.
I exit the building with the file. I am neither stopped nor searched. I enter the building again and go through all the security checks. The file remains undiscovered.
The woman at the help desk looks blankly at the empty file and asks me whether the case has appeared in court yet. "I don't know," I say.
No number
Well, in that case, she cannot help me, she says. There is no way for her to find out where these papers are. I ask her whether there is a number I can phone in future to prevent futile trips. She informs me that there is not.
I dump the empty file on a stack of other files lying unguarded on the counter at the archives.
Take three. This time, my boss, [Amabhungane managing partner] Sam Sole, has phoned Judge President Bernard Ngoepe. Ngoepe has sent an email to the senior court registrar, Dave Pietersen, to fix the problem, lest the public gain the impression that the court is sitting on information that should be available to all.
I make sure I phone Pietersen before I go to court once again. I am hoping that he will agree to keep the file at his office.
Pietersen tells me in no uncertain terms that he has seen the judge president's email but that the folder I am looking for is not a priority for him. I realise that he will not assist me.
Desperate
This does not bode well. However, I am desperate to get the file, so I head back to court, hoping to find it in the archives.
Again, I grab a form and fall into line at the archive. A man calls some of us to the back into the archive room. Amid swearing and sweating, the man scratches through rows of files. There is a rough numerical order to the files but it is not an exact science. He sends me back outside. When he resurfaces he hands me my form, along with a similar form.
"Your file is not here. Call these people. They took it last."
I look at the second form. I don't know who “Jolandi” is, but I am relieved to have a name and a number.
Then I realise that Jolandi may have returned the file by now. Which would mean it could be anywhere in the twilight zone between her office and the court archives.
Looking for the registrar's office, I get lost. I knock on an open door. The man at the desk seems annoyed. I explain. He says there are two other offices that may have the file. "Would you just come and have a look at this?" he asks, pointing at his computer screen. I fix his MS Word table.
Be persistent
Delighted, he finally makes eye contact. He advises me that I should be persistent when I go to those two offices because sometimes they just don't feel like helping.
Just then I notice that the man at the archives was mistaken. Jolandi doesn’t have my file after all. The file she requested has a different case number. I give up. There's always tomorrow. And the next day. And the next. -- Heidi Swart
Source: Mail & Guardian
Tuesday, November 2, 2010
What can be done to make the dispute resolution process more rewarding?
In many instances a party who has suffered some form of loss at the hands of another does not have access to the documents, recordings or data which would enable that aggrieved party to enforce its rights against the perpetrator of the harm.
In the past the aggrieved party would institute action and would subsequently seek access to these documents, recordings or data in the course of the discovery procedures provided for in the court rules. This may mean that the true grounds of the action for recovery are only revealed at a fairly late stage once the discovered documents, recordings or data have been considered. Amendments to the pleadings (resulting in additional costs) may be necessary. At worst the discovery process may make it clear that the wrong party has been sued, and that the aggrieved party ought to have looked elsewhere to make good its loss.
These documents, recordings or data are only available once litigation is at an advanced stage. They may expose solid grounds for liability on the part of the Defendant. Had access to these documents, recordings or data been available at the outset, there would have been a strong incentive for the Defendant to settle the claim without compounding the harm by forcing the aggrieved party to embark on an expensive and time consuming process of enforcing its rights.
In the words of Cameron JA in his dissenting judgement in UNITAS HOSPITAL v VAN WYK AND ANOTHER 2006 (4) SA 436 (SCA) “Litigation involves massive costs, time, personnel, effort and risks. Where access to a document can assist in avoiding the initiation of litigation, or opposition to it, the objects of the statute suggest that access should be granted.”
The statute to which Cameron JA refers is the Promotion of Access to Information Act 2 of 2000 (PAIA). This Act is aimed at giving effect to every person’s right to access to information expressed in Section 32 of the Constitution. Section 32 of the Constitution provides:
Everyone has the right of access to:
(a) any information held by the State; and
(b) any information that is held by another person and that is required for the exercise or protection of any rights.
An aggrieved party can therefore utilise the mechanism provided for in PAIA with a view to accessing documents, computer files, tape or video recordings, email messages and the like.
A decision regarding whether to employ the procedure embodied in PAIA must be made at an early stage of any dispute resolution process. Once legal proceedings (in the form of an action or application launched in a court of law) have commenced, the parties to that legal process are restricted to utilising the applicable court procedures and cannot then seek to apply for access in terms of PAIA.
An application for access to information under PAIA can be directed either at a public body such as a government department or a state owned enterprise, or at a private body such as a natural person or commercial corporate entity. The requirements to be met by an applicant when applying for access to information in the hands of a private body are more onerous, since in addition to meeting the requirements of an application directed at a public body, the applicant must show that the record in question is required for the exercise or protection of a right. The applicant need not disclose the reason for its request, where this is directed at a public body.
There are certain limited grounds on which either a public body or a private body may legitimately refuse to give access, and these include that access would involve unreasonable disclosure of personal information about a third party, or if the record in question contains trade secrets of a third party or information supplied in confidence by a third party which could reasonable be expected to put that third party at a disadvantage in contractual negotiations or commercial competition. Other grounds relate to the endangerment of the life or physical safety of individuals or of security of buildings, transport systems or other property. An obvious exception is a record which is privileged in legal proceedings since one cannot access records under PAIA which would protected from discovery in terms of the normal rules applicable in legal proceedings.
The obvious advantage of the PAIA process is that the aggrieved party will obtain the documentation much sooner. This fact has a number of important implications.
Very often documents, recordings or computer data are lost or destroyed over time. Obtaining copies at an early stage will avoid any prejudice arising from this type of incompetence. If the aggrieved party obtains all relevant records at an early stage it will be better placed, at the outset, to assess the prospects of success of litigation and to focus on the areas most likely to found a solid case at the trial, thus saving time and money. The lawyers representing the aggrieved party in any legal processes which may follow will be armed with the appropriate knowledge required for accurate pleading of the case, meaning that it should not be necessary to make amendments to the pleadings at a later stage, again saving time and money. The prospective Defendant will be in a position, at an early stage, to more accurately assess their prospects of successfully defeating the claim. If the evidence is such that they must accept that there is a high probability of a court finding against them, they are more likely to accede to a reasonable settlement of the claims, knowing that the aggrieved party is also in possession of this evidence.
Our Courts are very concerned that the provisions of PAIA not be used in circumstances where it is more appropriate to utilise the court procedures which have been in existence far longer. Our Courts do not allow what is termed as “a fishing expedition”.
The applicant would have to show that the records requested are required because they will afford the applicant with a substantial advantage or that there is an element of need. The fact that the records can be obtained from another source may be raised to substantiate a refusal by a private body. It would be helpful, in order to meet this requirement to show, for example, that the documents are necessary in order for the applicant to identify the correct Defendant and/or in order to properly formulate its claim.
When an aggrieved party contemplates proceedings aimed at the enforcement of its rights it would be well advised to first consider whether the mechanism provided for in PAIA can and ought to be employed before launching into formal court proceedings.
ENS - Edward Nathan Sonnenbergs
Janine Lee
South Africa
November 2 2010
Source: Lexology
In the past the aggrieved party would institute action and would subsequently seek access to these documents, recordings or data in the course of the discovery procedures provided for in the court rules. This may mean that the true grounds of the action for recovery are only revealed at a fairly late stage once the discovered documents, recordings or data have been considered. Amendments to the pleadings (resulting in additional costs) may be necessary. At worst the discovery process may make it clear that the wrong party has been sued, and that the aggrieved party ought to have looked elsewhere to make good its loss.
These documents, recordings or data are only available once litigation is at an advanced stage. They may expose solid grounds for liability on the part of the Defendant. Had access to these documents, recordings or data been available at the outset, there would have been a strong incentive for the Defendant to settle the claim without compounding the harm by forcing the aggrieved party to embark on an expensive and time consuming process of enforcing its rights.
In the words of Cameron JA in his dissenting judgement in UNITAS HOSPITAL v VAN WYK AND ANOTHER 2006 (4) SA 436 (SCA) “Litigation involves massive costs, time, personnel, effort and risks. Where access to a document can assist in avoiding the initiation of litigation, or opposition to it, the objects of the statute suggest that access should be granted.”
The statute to which Cameron JA refers is the Promotion of Access to Information Act 2 of 2000 (PAIA). This Act is aimed at giving effect to every person’s right to access to information expressed in Section 32 of the Constitution. Section 32 of the Constitution provides:
Everyone has the right of access to:
(a) any information held by the State; and
(b) any information that is held by another person and that is required for the exercise or protection of any rights.
An aggrieved party can therefore utilise the mechanism provided for in PAIA with a view to accessing documents, computer files, tape or video recordings, email messages and the like.
A decision regarding whether to employ the procedure embodied in PAIA must be made at an early stage of any dispute resolution process. Once legal proceedings (in the form of an action or application launched in a court of law) have commenced, the parties to that legal process are restricted to utilising the applicable court procedures and cannot then seek to apply for access in terms of PAIA.
An application for access to information under PAIA can be directed either at a public body such as a government department or a state owned enterprise, or at a private body such as a natural person or commercial corporate entity. The requirements to be met by an applicant when applying for access to information in the hands of a private body are more onerous, since in addition to meeting the requirements of an application directed at a public body, the applicant must show that the record in question is required for the exercise or protection of a right. The applicant need not disclose the reason for its request, where this is directed at a public body.
There are certain limited grounds on which either a public body or a private body may legitimately refuse to give access, and these include that access would involve unreasonable disclosure of personal information about a third party, or if the record in question contains trade secrets of a third party or information supplied in confidence by a third party which could reasonable be expected to put that third party at a disadvantage in contractual negotiations or commercial competition. Other grounds relate to the endangerment of the life or physical safety of individuals or of security of buildings, transport systems or other property. An obvious exception is a record which is privileged in legal proceedings since one cannot access records under PAIA which would protected from discovery in terms of the normal rules applicable in legal proceedings.
The obvious advantage of the PAIA process is that the aggrieved party will obtain the documentation much sooner. This fact has a number of important implications.
Very often documents, recordings or computer data are lost or destroyed over time. Obtaining copies at an early stage will avoid any prejudice arising from this type of incompetence. If the aggrieved party obtains all relevant records at an early stage it will be better placed, at the outset, to assess the prospects of success of litigation and to focus on the areas most likely to found a solid case at the trial, thus saving time and money. The lawyers representing the aggrieved party in any legal processes which may follow will be armed with the appropriate knowledge required for accurate pleading of the case, meaning that it should not be necessary to make amendments to the pleadings at a later stage, again saving time and money. The prospective Defendant will be in a position, at an early stage, to more accurately assess their prospects of successfully defeating the claim. If the evidence is such that they must accept that there is a high probability of a court finding against them, they are more likely to accede to a reasonable settlement of the claims, knowing that the aggrieved party is also in possession of this evidence.
Our Courts are very concerned that the provisions of PAIA not be used in circumstances where it is more appropriate to utilise the court procedures which have been in existence far longer. Our Courts do not allow what is termed as “a fishing expedition”.
The applicant would have to show that the records requested are required because they will afford the applicant with a substantial advantage or that there is an element of need. The fact that the records can be obtained from another source may be raised to substantiate a refusal by a private body. It would be helpful, in order to meet this requirement to show, for example, that the documents are necessary in order for the applicant to identify the correct Defendant and/or in order to properly formulate its claim.
When an aggrieved party contemplates proceedings aimed at the enforcement of its rights it would be well advised to first consider whether the mechanism provided for in PAIA can and ought to be employed before launching into formal court proceedings.
Janine Lee
South Africa
November 2 2010
Source: Lexology
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