Nkandla report: The real reasons why ministers took on Thuli

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

Secrecy Bill gets NCOP approval, marches towards becoming law

The African National Congress is using its majority might to bulldoze the Protection of State Information Bill through Parliament. It now goes to the National Assembly after being passed by the upper house, where MPs were given suspicious, unmarked propaganda documents promoting the Bill’s “benefits”. By MANDY DE WAAL.

South Africa’s Protection of State Information Bill (POIB) was pushed through Parliament's National Council of Provinces (NCOP) by the ANC’s majority muscle late on Thursday 29 November 2012. The vote was 34 in favour of the draft legislation, while 16 members of Parliament voted against the Bill.

As MPs filed into Parliament’s upper house, the Right2Know campaign, a coalition formed in August 2010 to oppose the Secrecy Bill, handed out letters spelling out its concerns. “One of our campaign supporters noticed that the MPs were carrying documents themselves, and did an exchange,” says Murray Hunter, Right2Know’s spokesperson and organiser. “What we got hold of was a spin sheet with sound bites spinning certain aspects of the Bill. It was a document called “Myths about the Protection of State Information Bill” asserting that the Bill did indeed contain a public interest defence and would make it impossible to hide corruption.”

Murray says that the information used in the document – which had no source or logo on it – was filled with flawed and confused arguments. The Right2Know campaign said it wanted to know who had drafted the document and how it was funded.

Parliamentary leader for the DA, Lindiwe Mazibuko, said her biggest issue was the source of the anonymous document, and possible interference by the ministry of State Security. “We know that Siyabonga Cwele’s department has been interfering in the legislative process quite publicly by saying what NCOP members should and shouldn’t do with the legislation, which is in itself a violation of the separation of powers. That is problematic because once the law is in Parliament, it must be dealt with by MPs, and an MP’s job is not to do the bidding of government,” said Mazibuko. She added that if the document did indeed come from the ministry of State Security, it would be a “huge problem”.

“It is well known that Parliament has a research unit in every single portfolio committee, and every select committee, which has a secretariat and a researcher, and often they provide committee members with information. But there is something very suspicious about parties and MPs being given a script on their way into a debate, whether or not that script came from Parliament or a government department. It is suspicious when this document comes late in the game, when the legislation is being debated upon,” she said, and added: “At the moment we are concerned with some of the procedural problems with the Information Bill, and it is certainly one of the things we will look into.”

Earlier in the week, the controversial Bill – subject of much civil society protest – was adopted by an NCOP ad hoc Parliamentary committee which had been working on changes to the Bill for the last year. Mail & Guardian reported that opposition parties were given just 10 minutes to study the 22-page report on the ad hoc committee’s deliberations, and amendments to the Secrecy Bill. The opposition walked out and ANC members voted to send the Bill to a plenary session of the NCOP.

“It is clear that the Bll’s final process through the NCOP has been rushed and botched very badly,” said Nic Dawes, editor-in-chief of the Mail & Guardian. “Despite the initial willingness of members of all parties in the NCOP to do this properly and to try and hear the concerns that were raised by civil society, by lawyers, by the media, by activists, this potential to do a good job has been replaced by a mad rush to meet a self-imposed deadline. Serious damage has been done to the process as a result.”

Dawes said people weren’t able to properly consider the committee report earlier in the week and added it was likely that the remainder of the NCOP, and plenary session, hadn’t had a proper chance to consider the amended legislation in its entirety, nor to make an informed decision on it.

“The remaining options are for the National Assembly to do what it ought to have done all along, and that is to say that this legislation needs major revisions. It needs a proper public interest defence and a public domain defence. It needs to have an appropriate balance between freedom of information and the need to protect very narrowly and carefully defined state secrets, and it needs to be subordinate to the main piece of Constitutional legislation in this area, and that is the Promotion of Information Act,” Dawes said, adding that the National Assembly had one last chance to do the right thing.

“If they don’t, I hope a draft of MPs will send this for Constitutional review; I have been advised that they will try. Or alternatively that President Zuma does that, and then ultimately we will end up in the Constitutional Court, testing the legislation vigorously, and it is a pity that it looks like we are going to get to that place, but if need be that is what we will do,” Dawes said.

As the NCOP session got underway, State Security minister Cwele worked hard to sell the “benefits” of the Bill. Cwele, who had long pushed for the more draconian aspects of the Bill to remain intact, said the draft legislation sought to “advance the public interest by protecting certain classified information held by the state that if it became known to adversaries, would prejudice state programmes and hinder its ability to perform its duties.”

Reaching for a snappy quotable quote, Cwele addressed those scared of the implementation of the Bill into law. “To those who fear that the Bill may be abused, we say: the only thing to fear is fear itself.” (We presume Mr Cwele is FDR's fan - Ed)

BDLive reported that there was fierce opposition debate in the NCOP, with DA MP Alf Lees accusing the ANC of misleading the public by claiming extensive amendments to the Bill had ruled out the possibility of a state official using it to conceal wrongdoing. "Given the levels of corruption we see in government today, it is inevitable that the Bill will be used to cover up crime and corruption by those who risk exposure," he said, to ANC jeers.

Lees said the Bill still lacked a proper public interest defence clause to protect the media and whistle blowers, while his colleague Albert Fritz added, "This Bill is Stasi-like in its content and design."

Anton Harber, who directs the Journalism and Media Studies Programme at Wits University, agrees that there is still much to fear about the Bill. “It affects people in two ways. If one comes across information that needs to be out there in the public interest, clearly it raises the risks of being a whistle blower enormously,” said Harber.

“I have no doubt it will have a chilling effect on certain kinds of investigative journalism. It means an impact on the flow of information in the public arena. The penalties for whistle blowing potentially jump enormously here,” he added.

To understand the practical impact of the Bill, should it become law, Daily Maverick spoke to an activist in Kwazulu-Natal, a province where the political body count has been rising during recent months.

“We have a lot of political killings in the province at the moment, and in some cases even within the same political party,” said Desmond D'sa, a veteran political activist who’s currently in an organisational role for Right2Know in Kwazulu-Natal. “We believe that this is because of all the corruption that’s happening in this province. We have been asking for information related to this for a long, long time; for instance, we’ve asked for the Manase report in Durban, which reveals a lot of the shenanigans that going on.”

But the city refused to let activists, who report and organise against corruption, to have a copy of the report. “The city cites that whistle-blowers will lose their jobs or get killed and all of that, but that’s exactly what’s going on here in the ruling party. We believe that the Manase report is linked to these killings and will reveal a lot about what’s going on in the ANC in Kwazulu-Natal. The killings are about who is in power, who controls the resources, and who gets access to resources,” he said.

D'sa said even less “sensitive” information, like finding out about funding of housing projects, is blocked by officials who are already using the Bill (which hasn’t been passed in to law) to stop activists, the media or concerned citizens from getting information.

“If, for instance, you want to know what housing projects are being done and what funds have been made available for this in the city, you won’t get to the bottom of it. This is because the information is classified and not released. It is classified by people right at the top. It is going to make it impossible for people to find out what is really going on here in the province,” said D’sa.

The activist explained that the control of information made it impossible for civic society to do its job as a watchdog of government, and stated that the Bill was particularly threatening for whistle blowers.

“The NGOs and the civic organisations depend on whistle blowers to uncover corruption, and whistle blowers are crucial to the functioning of a democratic society and to help us get to the truth. However, the situation with whistle-blowers will get even worse because of the mounting fear. People will be fearful of being arrested, and now will be scared to release any kind of information because of the consequences,” D’sa said.

In terms of the proposed law, whistle blowers who reveal “corruption, malfeasance or wrongdoing by the State” can look at jail terms of up to 15 years. Furthermore, the Right2Know campaign also fears that whistle blowers may be charged under espionage clauses of the law which would see penalties of up to 25 years imposed.

In Kwazulu-Natal, this might be the case for activists investigating chemical fires and explosions. “In Durban the chemical cluster operates under the military, and under this new law, the military and the ‘securocrats’ in government won’t release any information at all. Even when people are getting killed or people are being affected by chemical emissions, this will not be released because they will deem it confidential and they will classify it,” D'sa told Daily Maverick.

“We have had over thirty explosions in the past few years, and fires in Durban, and we asked the department of labour to release certain forensic reports and they won’t do it. Can you imagine now if the law comes out? The flow of information with come to a standstill,” he added.

In the past, activists have been able to eke out some information through whistle blowers, but this will either dry up, or both activists and whistle blowers could face jail stiff terms. But D’sa and the Right2Know campaign are unrelenting.

“I hope that everyone realises that the democracy that everyone fought for and yearned for will be curtailed by this new law, as it is being bulldozed through Parliament. We are worried that we have gone right back, right back to the dark days of the Apartheid government, in bringing about these laws to stifle civil society, and to stifle ordinary people from standing up and asking the right questions, and getting the answers.”

“We will up the tempo of our protests. We are going to fight, even to the extent of being imprisoned. We are not going to shy away from standing up for the truth – even to the extent of being imprisoned because we need to fight this,” he added. DM

Source: Daily Maverick

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

President Jacob Zuma Laughs Alone

President Jacob Zuma has an infectious laugh. His guffaws break the ice and disarm the tensest situation. At that precise moment no answers are demanded on the infamous arms deal or police corruption because the nation has the giggles and the President laughs loudest. An ambassador – clearly charmed – once remarked to me that it is a ‘beautiful laugh’ – and then laughed from his belly. The spell had been cast and from that moment on he had a crush on my President.

However, for many South Africans the love affair with our President is on the rocks. The polls reflect a growing unease with politics that appears increasingly driven by self-preservation: preservation of power, preservation from prosecution and preservation of moneyed lifestyles. A potentially toxic mix and the basis of political impunity. How far are the President and those around him prepared to go in pursuit of this goal?

In the shadows, formal and informal security networks are settling scores and doing the dirty work of those in power. Something sinister is afoot. A collusion of interests between people who have guns and people who have money is starting to infect our politics in an undeniable manner. The murder of a dozen ANC politicians, including a whistleblower, in the past three years is an indication of this and the ruling party has appointed a task team to look into it.

Why is this left to an ANC task team to investigate when it should surely have been a matter that demanded attention from the country’s spies at the State Security Agency? They have unparalleled resources at their disposal, yet City Press reports that the ANC’s Deputy General Manager will lead this investigation. Why did the ANC leadership not call in State Security Minister Siyabonga Cwele’s spies? Or are they not to be trusted to lead an investigation and report to the President and to Parliament? Do the country’s elected political leaders not represent the aspirations of a nation and not only party apparatchiks?

One answer is that some politicians no longer trust the state spies. While undertaking research on the unfolding saga of alleged corruption and murder linked to suspended police crime intelligence chief Lt-Gen Richard Mdluli a few months ago, I was struck by the fact that some of the country’s highest ranking current and former police chiefs were afraid to speak on their cellphones. It was a case of ‘batteries out of cellphones first’. They, like former ANC Youth League leader Julius Malema, answer their phones with the rhetorical ‘Hello Mr Mdluli’. Are top cops really that afraid of an alleged criminal network that had come to control police crime intelligence? This directly under the nose of the Minister of Police, the Minister of State Security and the President?

What is certain is that a climate of fear is gripping politics in the country and it is being driven by securocrats. This is by no means a direct parallel to the machinations of the apartheid state. However, the trend is worrying. Some of the feared repression is coated in policy processes such as the Protection of State Information Bill (the Secrecy Bill), and the current draft of the General Intelligence Amendment Bill  – the Secrecy Bill’s ugly twin known as the ‘Spy Bill’. These pieces of legislation will block the free flow of information, protect the corrupt and allow for the monitoring of communication on email, MXit, Facebook, Twitter and Skype – providing more insight than spies sitting in shebeens and potentially more effectively controlling the politically disaffected urban population (those whose lives do not revolve around shopping malls). 

On the other hand, the proposed Traditional Courts Bill (the ‘Chiefs Bill’) will ensure greater power for unelected male traditional leaders at the expense of elected leaders. Thereby potentially drawing together the strings of a patronage network in rural areas that is largely accountable to the man who dispenses the money in Pretoria. These three pieces of legislation, in tandem, will ensure that a conservative-minded state apparatus inevitably works against the values of an open society. It has the potential to keep a lid on urban and rural social dissent while ensuring the possibility of unchecked accrual of wealth and power to those who loosely control the network. It is cynical politics. Is this what 100 years of ANC struggle was intended to culminate in?

This does not only manifest in policy. Consider the sinister manner in which the editor of the Mail & Guardian and senior members of the M&G Centre for Investigative Journalism (amaBhungane) have been made to report to the police in what appears to be a pre-arrest process in the past week. This foreplay to possible criminal sanction is all because of an exposé that links President Zuma’s spokesperson Mac Maharaj – a public servant – to corruption in tenders awarded while he was Minister of Transport. Did Mr Maharaj consult with his direct supervisor before pressing criminal charges? Is the intention to charge or scare investigative journalists? Either way, the matter is a disgrace to the Presidency.

Other attempts at intimidation happen when things go ‘bump in the night’ in a manner where nobody can pin the direct blame on the state apparatus. Earlier this year Constitutional Court Judge Sisi Khampepe and Advocate Muzi Sikhakhane’s homes were burgled and laptops stolen. According to Sikhakhane, who also acts for Malema, one of the documents stolen was an affidavit by Human Settlements Minister Tokyo Sexwale requesting a probe into Mdluli`s alleged abuse of state resources. He suspects foul play. I have personally been circumspect when such allegations are made. This is a country with high levels of crime and an urban middle class that has developed an appetite for the crime fiction genre. However, in the past eighteen months my own office has been broken into twice late at night using exactly the same method of entry, which requires the skill of a cat burglar. On one occasion my external hard-drive (containing a draft manuscript of a book on the arms deal) was stolen. In recent weeks the visitors took nothing, as the hard-drive was safely stored elsewhere (and for the record I am not sitting on some smoking gun). All other shiny objects were left untouched. It may be ordinary crime or coincidence. 

What is far more worrying is the alleged ‘suicide’ of Arms Deal Commission of Inquiry secretary Advocate Mvuseni Ngubane in May this year. On the same day he met the President he climbed into his luxury vehicle, with no know financial or personal problems, and shot himself, to the dismay of friends and family. A muted shock followed in the press at the death of a man who in practical terms would be the most powerful person in the commission. Whatever the reason for his death, it no doubt has delayed the work of the commission, which is unlikely to start its public deliberations before the ANC’s national conference in Mangaung  and will now probably only end its work after the 2014 general elections – a happy coincidence for corrupt businessmen, arms dealers and politicians alike.

We live in a country where enormous potential lies outside of its elite and within the ranks of ordinary people who want a more just, fair society. An important element to unlocking this potential is that we want to fear those with power far less. Without this none of us will ever be equal. It is a reflex acquired through centuries of jealously policed inequality that cannot be unlearnt overnight. But when a handful of securocrats, spies, politicians and police, together with their business associates, operate outside of the law they undermine the work of everyone in their ranks. They also send a signal to our society that repression remains central to maintaining power. This must have been present somewhere in the minds of the youth gang in Khayelitsha outside Cape Town on Sunday night, 29 July, as they intimidated learners and terrorized an entire community with knives and pangas. An ‘ordinary’ gang holding up the mirror to our politicians? These are no laughing matters. 

Hennie van Vuuren,  Director, ISS Cape Town Office

Source: ISS

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

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:

“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

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

Democratic Left statement on ANC-SACP pro-Secrecy Bill march

PRESS STATEMENT: RESPONSE TO ANC-SACP-SANCO MARCH IN SUPPORT OF THE SECRECY BILL (THE PROTECTION OF STATE INFORMATION BILL)

The Democratic Left Front (DLF) condemns the ANC, SACP and SANCO for organising a anti-democratic march for today in Cape Town in support of the anti-democratic Secrecy Bill (the Protection of State Information Bill). Despite the fury of the anti-imperialist and revolutionary rhetoric used to justify this march, no democrat of any conviction in South Africa can stand silent whilst the ANC, SACP and SANCO threaten to use their mass power to trample on basic democratic rights to information. This march is the first warning shot in the use of the mass activist base of these organisations as storm-troopers for the authoritarian ruling elite. If ever there was ever a classic example of the extent to which the ANC and the SACP represent authoritarian populism, this march is it. This is typical of Stalinist propaganda that was used by anti-democratic regimes in the past. Today, the ANC and the SACP have created false bogeys of liberals, foreign infiltrators and aggressors, and espionage in order to clamp down on social dissent given their collective failure to transform capitalist South Africa.

The DLF stands unreservedly in full and firm support of the Right to Know Campaign (R2K), COSATU, the SA Human Rights Commission and other progressive organisations in South Africa who remain opposed to the Secrecy Bill. The DLF rejects the spurious allegations made by the ANC, SACP and SANCO in their statement announcing today’s march. The DLF fully endorses the R2K statement issued in response to the ANC-SACP-SANCO statement. The R2K is not dominated by foreign-sponsored NGOs and western-owned media agencies. The R2K is not misleading the public about the class orientation of the media. In fact, the R2K has not only opposed the Secrecy Bill but has also argued and mobilised for truly democratised and diversified media, something which the ANC government has failed to facilitate through the statutory Media Development and Diversity Agency. For all these reasons, the DLF reaffirms its endorsement of the R2K campaign.

The intention of the Secrecy Bill is to stifle the spaces that do exist for access to information and critically informed citizens. The Secrecy Bill is not fundamentally about protection information that threatens the security of ordinary working class South Africans, but about protecting spaces for the ruling elite to continue their plunder of the state. While recent concessions by the ANC have improved the Bill, it will still be extremely difficult, if not impossible to ensure transparency of the most shadowy of all state structures, the security cluster. The grounds for classification of documents, and the definition of national security, still remain overbroad, and will lead to documents that are of considerable public interest and importance being declared secret. The Bill also lacks an adequate public interest/public domain defence in case people come into possession of classified documents, or if they are released into the public domain. This has serious implications for activists, who may come into possession of classified documents exposing abuses of power.

The Secrecy Bill is merely symptoms of a much bigger problem. Jacob Zuma’s ruling elite, which was brought to power by the ANC’s Polokwane conference, is enhancing the coercive capacities of the state, and in the process centralising power in an increasingly unaccountable security cluster. The re-militarisation of the police, which has intensified state violence against protestors, attempts to drive unions out of the military, and the lockdown on transparency and accountability in the Ministry of Defence are also signs of the growing power of Zuma’s securocrats. The DLF fears that unless the growing power of the security cluster is checked, then South Africa may be well on its way to a national security state, which likely to contain growing dissent against service delivery and the capitalist system itself through repression.

Source: Constitutionally Speaking

Cosatu: Secrecy Bill will create a 'police state'

Cosatu will be the first to challenge the Protection of State Information Bill in court because it risks turning South Africa into a security state again, general secretary Zwelinzima Vavi warned on Thursday. Vavi said that although the Bill was redrafted under pressure from the Congress of South African Trade Unions, the version passed by the National Assembly last year still raised the spectre of abuse of classification to conceal corruption.

He told MPs the scope of the draft legislation was too wide, the penalties it imposed disproportionate, and the potential impact on South Africa's democratic values devastating. "You have to be concerned that the scope of the Bill is extended way beyond what is necessary ... it takes a huge swipe at everything that moves," he told a third day of public hearings on the secrecy Bill by the National Council of Provinces.

Cosatu's biggest fear was the Bill might "inadvertently draw us closer to a threat of entrenching a security state". "Back to where we come from -- the police state. Everything marked confidential and everybody seeing something marked confidential suddenly fearing 15 to 25 year imprisonment." Reminding MPs that he represented two million union members -- and voters -- Vavi said the Bill was ripe for constitutional challenge on several grounds and Cosatu would not be deterred by the fact that it would find itself on the same side as opposition parties. He singled out clause 3 (2) (b), which allowed the minister of state security to confer the power to classify information on any other state entity, and clause 49, which bans the publication of anything deemed a state security matter, as unacceptable. "You cannot give the minister a blanket right. What we fear is that if you give such a blanket right you might end up with the lease agreements between the police and the various agencies being classified. That is very, very dangerous. Please don't pass a law you will regret in future," he said. Had the Bill been law, these provisions and those that would send journalists to jail for disclosing state secrets might have meant that two scandal-tainted ministers sacked last year -- Sicelo Shiceka and Gwen Mahlangu-Nkabinde -- would still be in their posts, Vavi said. "Just close your eyes and think if we would have seen the backs of two ministers last year. We would have not known that if it had not been for the excellent work of the media," he said, adding that the Bill was not the place to address concerns about media ownership and bias.

"The persecution of the media would only exacerbate the problems of inaccuracy and bias. In our view, it is necessary to enhance investigative reporting in the public interest. However as the Bill places extensive restrictions on the access and disclosure of classified information, it would necessarily severely curtail this objective."

Vavi went on to bemoan the Bill's assertion, contained in clause 1 (4), that it trumped the progressive Promotion of Access to Information Act. "What it means is that fundamental piece of transformation becomes secondary to security legislation. We think that is very dangerous." Furthermore, the draft law's provisions on whistleblowers -- many of them union members -- who disclosed classified information to reveal wrongdoing was plainly unconstitutional. Clause 43 offered exemption from prosecution only if the revelations pertained to the whistleblower's employer and, in addition, shifted the burden of proof from the state to the accused. "We have said if these types of clauses go through then we will be left with no choice but to approach the Constitutional Court," he said. "We will be the first to arrive there. Our lawyers are standing very ready to do so."

Veteran human rights lawyer George Bizos, appearing on behalf of the Legal Resources Centre (LRC), listed seven fundamental flaws in the Bill and concurred that it violated the Constitution. The LRC agreed with Vavi's criticism of the heavy onus the Bill sought to place on those accused of breaching it, saying it could see somebody "condemned to 25 years in jail for being stupid".

Bizos urged MPs to refer the Bill to the Constitutional Court, warning that if it were enacted in its current form "there will be a very long queue of applicants to take the president, the minister of justice to court". He then deviated from his text to deplore the government's planned assessment of the Constitutional Court and Supreme Court of Appeal and urged the government to follow former president Nelson Mandela's example in respecting the courts.

Vavi said he found succour in the fact that Mandela's former defence lawyer shared his views on the Bill. "It gives us comfort that you are in the same corner," he said.

Source: Mail & Guardian

Madonsela: Secrecy Bill will 'bedevil' investigations

Public protector Thuli Madonsela has pleaded with parliamentarians to rethink key aspects of the Protection of State Information Bill, saying it would "severely" affect her work. Madonsela told them on Wednesday that the Bill, as it stood, would shrink her powers and bedevil investigations into state wrongdoing. It would reduce her to the status of an ordinary citizen because it would oblige her to hand classified information to the police like anyone else.

Likewise, it would strip away the right she held to access classified information in the course of her duty, instead forcing her to go to court to obtain it like any other South African. "The public protector is directly affected by this Bill," she told the second day of public hearings in Parliament on the contentious draft law. We will not be toothless but we are going to function under more onerous circumstances."

She said the obligation clause 15 of the Bill created for those who received classified information to hand it to the police to avoid prosecution posed the risk of her being arrested while she was studying any of the secret documents delivered to her office almost daily. "Will I be affected? Yes, severely. At the moment I'm not chasing around trying to find out what documents came to my office and which police station do I rush to report it. I don't want to do that. Unfortunately, Parliament has elevated the police above chapter nine institutions. Why does this democracy trust a police station above chapter nine institutions?" she asked.

Madonsela said that at the moment she had the prerogative to scrutinise any information sent to her office to see how it should be handled, but this would become a perilous exercise if the Bill were passed. "What if I am arrested while I'm applying my mind?" she asked, adding: "Probably the same could happen to journalists."

Madonsela tactfully suggested that the Bill's impact on her office was one of a number of unintended consequences of the legislation but baulked when ANC MP Nosipho Ntwanambi asked why the person in her post should not be treated in the same manner as ordinary South Africans. "When a member of Parliament says you should be subject to the same rights and responsibilities as a person in the street, it scares me. My responsibility is to be some kind of buffer between the state and the citizen."

Madonsela said she did not believe the Bill should include a special exemption for her office but rather a chapter recognising the special status of all similar institutions, in the same manner that it enshrined the special powers of courts. "What I am asking Parliament to accept is that chapter nine institutions were created by you as an accountability mechanism, and you should give them the space to exercise that responsibility."

Madonsela called for the inclusion of a public interest defence in the Bill, rejecting State Security Minister Siyabonga Cwele's oft-repeated argument that this would lead to the wholesale publication of state secrets. "Will it open the floodgates? No, I don't think so." She said such a defence would have to withstand an objective test on whether the public good derived from publication of a classified document outweighed the risk to the national security.

Like many other critics of the legislation, she said its definition of national security was too wide and it could pave the way for over-classification. Asked whether she was flatly declaring the Bill unconstitutional, Madonsela declined to answer but impressed on MPs that rethinking the Bill could spare them the potential embarrassment of having it declared invalid by the courts. "You have the power to prevent this matter being settled by a court of law," she said.

Source: Mail & Guardian

S&P downgrade of SA’s outlook hits rand

The rand weakened against the dollar on Wednesday after Standard & Poor’s, the rating agency, downgraded South Africa’s outlook to negative from stable, citing structural economic and social problems. The agency said South Africa’s near-term political pressures had eased and the Treasury remained committed to fiscal consolidation, but added that problems such as high unemployment and a structural current-account deficit persisted. "The negative outlook reflects the potential for a downgrade if economic and social problems feed into the political debate in the run-up to the 2014 elections and consequently further put pressure on the policy framework," S&P said.

It reaffirmed South Africa’s foreign and local currency ratings at BBB+/A-2 and A/A-1. The rand weakened to R7,665 to the dollar from R7,643 just before the S&P release. By about 3.30pm local time, it was at R7,6698 to the dollar. The currency, which had been weakening in earlier trading, was down about 0,7% after the announcement. Government bonds also fell, with the yield on the three-year benchmark bond rising to 6,85% from 6,81% before.

This is the third outlook downgrade in four months for Africa’s biggest economy. Fitch cut its outlook to negative in January following a similar move from Moody’s in November. Both agencies cited political pressure as the reason for their move. The fact that S&P did not put South Africa’s rating on credit watch meant the chances of a cut in the short term were limited, said Peter Attard Montalto, emerging-markets analyst at Nomura, the Japanese investment bank. "It is only the course of medium-run policy dynamics that will perhaps eventually lead to a downgrade. Market reaction is likely to be somewhat contained given the risks S&P talk about are already well known," Mr Montalto added.

Source: Business Day

Chairman stops info bill submission

An oral submission on the Protection of State Information Bill was stopped on Wednesday afternoon because it contained "political statements". Mark Weinberg, from the Alternative Information Development Centre, was interrupted when he mentioned "the rise of securocrats" and "the tendency towards greater conservative authoritarianism" in his presentation.

Raseriti Tau, the chairman of the ad hoc committee on the bill, told him: "Now, you are giving me problems now. I know that I am going to be accused of having denied you an opportunity to speak. We can't continue with this." He added: "There are serious political statements now that you are making now. You are making reference to the Polokwane conference and all those sorts of things. "Can we stop this presentation. We are not going to allow you to continue with this presentation."

Weinberg had said that the tendency towards greater conservative authoritarianism in South Africa had to be understood in terms in the context of the battle between various factions and groups fighting for influence in the ruling party and the state. "We also see the rise of securocrats," he said. "This so called... alliance of the wounded cobbled together pre-Polokwane is weakening and its fissures rupturing..." Tau then stopped Weinberg from continuing. "It would have been good if you were a lobby group and there is someone who was seeking funding for a protest," Tau said.

Source: Times Live

'Secrecy bill' united many in defence of Freedom

On March 17 an extraordinary thing in our remarkable politics occurred in Khayelitsha, Western Cape: 11 opposition political parties took to the stage in a visible show of solidarity against the Protection of Information Bill. They did so because of the ANC government's refusal to include a most necessary public interest defence clause in the bill.

As momentous as this solidarity was, the real high point was the readiness of the people in the audience, from different political parties, to collectively own leaders such as Robert Sobukwe, Steve Biko, Nelson Mandela, Mangosuthu Buthelezi and Helen Zille, among others. Important living and deceased leaders, for once, became common property associated with the common good.

The trivialisation of politics through a territorial, factional or racial attitude was overcome by people seeing the larger canvas. How exhilarating it was to leave the confining boxes and for once be free in the greater expanse of open political space. Here, for the first time, South Africans were willing to accord the kind of reverence to all leaders of the kind that the PAC exclusively gives to Sobukwe, Azapo to Biko, the IFP to Buthelezi and the DA to Zille. All distinguished leaders committed to democracy, the existential struggle of the people and to unadulterated freedom were acknowledged and given recognition.

The forging of a national spirit and willingness of the assembled politicians and supporters to accept the great leaders of our democracy, not in the division of segmented parties where they exist or existed but in the unity of a common matrix of freedom, is a turning point in our glorious history and augurs well for the preservation of our democracy.

May the light of freedom never dim in our country and may moral courage glow bright to show us the way to a safe and secure future. What the leaders and their parties did in Khayelitsha will reverberate through history.

Source: Times Live

ANC tries to muzzle critic of ‘secrecy bill’

The ANC has attempted to exclude the most vociferous opponent of the "secrecy bill" from the list of organisations to be invited to make oral submissions on the draft law. The African National Congress (ANC) yesterday attempted to exclude the most vociferous opponent of the "secrecy bill" from the list of organisations to be invited to make oral submissions on the draft law, and only relented when opposition parties strongly opposed the move.

The Right to Know campaign is made up of a host of civil society groups opposed to the Protection of State Information Bill. Its often strident criticism has earned it the ire of the ANC in Parliament. The organisation has consistently argued that the bill should include a public-interest defence for whistle-blowers and investigative journalists, as well as criticising the harsh penalties which the bill provides for those who publicise classified information.

The National Council of Provinces ad hoc committee dealing with the bill was yesterday busy compiling a short list from the more than 260 written submissions to be invited to make oral presentations to the committee. ANC MP Buoang Mashile said the Right to Know campaign should not be invited. The organisation was at all the public hearings held recently in all nine provinces and its views had been heard many times — "what is the necessity of inviting them back?" Mr Mashile was supported by other ANC MPs on the committee, who asked if there was anything new the group could add.

Congress of the People (COPE) MP Dennis Bloem and Democratic Alliance (DA) MP Darryl Worth objected. Mr Bloem said many of the organisations chosen by the ANC were also unlikely to bring anything new to the hearings. If the same standards were applied, then they too should be excluded, but COPE supported their inclusion. Mr Worth said the issue was the quality of the contribution that the Right to Know would be able to make, and "the DA supports their inclusion". ANC MP Nosipho Ntwanambi eventually relented, saying "they can come".

The committee also took the astonishing decision to exclude some organisations on the basis that they had the word "media" in their names. Committee chairman Raseriti Tau said all parties had supported this, including the South African National Editors Forum, and that this was enough representation for the media on the short list. This failed to recognise that some of the organisations the committee excluded were engaged in monitoring the media, rather than representing it. It was by this logic that Prof Jane Duncan of the Media and Information Society: Highway Africa, as well as Media Monitoring Africa, were excluded from the list.

In another key ruling, the committee decided that no political parties with representation in either the National Assembly or the National Council of Provinces could make oral submissions. In this way both COPE and the African Christian Democratic Party were excluded from getting invitations. The rationale was that political parties had a chance to express their views during parliamentary proceedings.

Organisations and individuals that all political parties agreed should be invited include Public Protector Thuli Madonsela, George Bizos of the Legal Resources Centre, the Human Rights Commission, the Nelson Mandela Foundation, the Congress of South African Trade Unions, the Catholic Bishops Conference and the Jewish Board of Deputies.

Source: Business Dau

Bizos: Secrecy Bill 'threatens values' of Constitution

Veteran human rights lawyer George Bizos argued in a submission to Parliament that the Protection of State Information Bill is unconstitutional on several counts. "The current draft of the Bill, as it stands, runs contrary to and indeed threatens many of the fundamental values and principles enshrined in the Constitution," he wrote.

Bizos, from the Legal Resources Centre's constitutional litigation unit, prepared the submission on behalf of human rights organisation Passop. It is one of 293 written presentations sent to the National Council of Provinces' ad hoc committee processing the Bill after it was passed by the National Assembly last year amid a public outcry. Nelson Mandela's former defence lawyer enumerated seven flaws in the Bill, starting with the absence of a public interest defence. "We view a public interest defence as imperative. Such a defence would exempt from prosecution certain individuals in limited and appropriate circumstances where the disclosure has been made in public interest."

In Bizos's view, the Bill would undermine the provisions of the Promotion of Access to Information Act (Paia) of 2000 and its status as the supreme law giving effect to section 32 of the Constitution, in which citizens' right to access to information held by the state is enshrined. Paia makes disclosure in the public interest mandatory in cases where the information would reveal the commission of a crime, or the existence of imminent public safety risk or environmental risk. Section five of Paia also states that it applies to the exclusion of any act that restricts disclosure or is materially inconsistent with its provisions. Yet, the Protection of State Information Bill in section 1(4) explicitly states that "despite" section five of Paia, it trumps any other law relating to classified information.

Bizos wrote: "Any proposed legislation that seeks to displace the clear provisions of Paia also violates section 32 of the Constitution and is thus unconstitutional. "The Bill's attempt to trump Paia, a constitutionally-mandated statute, is a further indication of the Bill's overall unconstitutionality." He notes that those who defend the absence of a public interest defence have argued that such a clause was unnecessary because the Bill criminalises wrongful classification.

The argument is wrong, Bizos said, because the draft law does not allow those prosecuted for disclosing state information to argue in defence that it was wrongly classified to begin with. "This further ignores the practical reality that improperly classified information will be difficult, if not impossible, to detect and challenge without the efforts of investigative journalists and whistleblowers who will be hamstrung in their ability to bring these illegal classifications to light if they fear lengthy jail terms."

Constitutional law expert Pierre de Vos said he agreed with Bizos because the Bill was drafted in such a manner as to criminalise disclosure of classified information, regardless of whether the classification was lawful. Bizos also faulted the Bill for allowing the minister of state security to confer the power to classify information on other ministers. This usurps the principle of accountability enshrined in section one of the Constitution because it removes the oversight of a particular function from Parliament, and places it with the delegating minister. He went on to say that the legislation runs counter to criminal law by basing liability not on the accused's intention, but on the far lower standard of proof that he or she "ought to have known" they were disclosing a secret.

Bizos also said that imposing prison sentences of up to 25 years for the offences in the Bill is excessive and that the Classification Review Panel it seeks to establish will not be seen as independent or impartial. This was because a member of the panel could be removed by a majority vote in the National Assembly, raising a reasonable suspicion of political bias.

Finally, he said the Bill flouts the constitutionally-mandated Promotion of Just Administration Act by potentially ousting the jurisdiction of the high court to review classification -- which is an administrative act.

The submissions include a 20-page letter from public protector Thuli Madonsela, who warned that it jeopardises freedom of expression and her ability to do her job by preventing journalists and whistleblowers from reporting abuses.

The Congress of South African Trade Unions (Cosatu), in its contribution, calls for the inclusion of a public interest defence and foresaw the Bill would "worryingly" have the effect of "entrenching authority through a security state". Cosatu has, along with rights groups, media houses and opposition parties, threatened to challenge the Bill in the Constitutional Court if it is signed into law in its current form.

The ad hoc committee will meet on Wednesday to schedule further hearings on the Bill.

Source: Mail & Guardian

Britain’s Debate over National Security and the Public’s Right to Know

In February 2009, the U.S. government transferred British resident Binyam Mohamed from the U.S. naval base at Guantánamo Bay home to the United Kingdom. A victim of extraordinary rendition, Mohamed had been imprisoned for seven years—held in Pakistan, Morocco and Afghanistan before his transfer to Guantánamo. After his release, Mohamed took legal action against the British government. He asserted that he had been subjected to cruel, inhuman and degrading treatment during his detention.
 
Other British residents held in Guantánamo, including Bisher al-Rawi, have likewise challenged their prolonged and abusive detention and interrogations. Their allegations implicated British intelligence in their interrogations and abuse. Mohamed, for instance, asserted that MI5 provided questions to foreign interrogators to facilitate his interrogations. He and other former detainees sought information from the British government regarding British complicity in their alleged torture.

At every turn, British intelligence challenged the efforts of former detainees, and the public, to shine the light on the abuse and British complicity in it. The government even took the extraordinary step of trying to litigate under “closed material procedures” the civil cases challenging the British government for its role in their abuse. A closed material procedure prevents the public and even the parties and their attorneys from having access to evidence, instead providing sensitive “closed” bundles of evidence only to “special advocates,” and to the court where appropriate. The closed material procedure does not take into account the public interest in disclosure, and information is known to the government lawyers, but not to the plaintiff or the plaintiff's lawyers.

The British Parliament has statutorily authorized the closed material procedure in only select categories of cases, and not in most civil cases. British courts have curtailed efforts by British state intelligence agencies to keep evidence of abuse secret. In July 2011, the UK Supreme Court rejected the use of the closed material procedure for civil litigation brought by the former detainees challenging their abuse. The Supreme Court unanimously ruled that it could not depart from the fundamental rules of a common law trial, including open justice—the public conduct of trials and release of judgments—as well as the right of a litigant to confront witnesses and know the evidence held by the government pertinent to his claims.

Rather than litigate the underlying issue of its complicity in the abuse of the British former Guantánamo detainees, the British government settled these civil cases. Yet the story is far from over. In October 2011, the Secretary of State for Justice presented to Parliament a Justice and Security Green Paper proposing a significant expansion of the use of the closed material procedure to “whenever necessary in civil proceedings,” as well as of special advocates, and limiting the categories of cases where a party is entitled to even a summary of the main intelligence documents. The British Parliament is currently considering these proposed modifications to limit access to intelligence information in civil proceedings. These are the wrong messages to draw from the Guantánamo civil cases.

Parliament should reject the Secretary of State’s proposals. Expanding the use of closed material procedures would shift the pendulum too far in the direction of secrecy, for alleged victims of abuse and for the public. In the Supreme Court opinion, Lord Dyson, writing for a majority of the Court’s judges, highlighted the 2010 report by the UK Parliament Joint Committee on Human Rights reviewing the first five years of the operation of the Special Advocates process. In its report, the Committee referenced the notorious Star Chamber—the seventeenth century English court with sessions held in secret and without appeal, and now symbolic of the dangers of a wayward, secretive and illegitimate judicial system unaccountable to the public or the rule of law.

The Parliamentary Joint Committee concluded that the use of special advocates “is a process which is not just offensive to the basic principles of adversarial justice in which lawyers are steeped, but it is very much against the basic notions of fair play as the lay public would understand them.” Other limitations on open judicial processes undermine the central role of open judicial review in democratic accountability. This remains true even and especially when national security is involved.

Where should a democratic society draw the line between what may legitimately be kept secret, and what should be open to litigants and the public? Freedom of information advocates, including the Open Society Justice Initiative and other partners, have drawn up the new Draft Principles on National Security and the Right to Information that could help legislative and regulatory drafters set the balance in a transparent and appropriate manner. These principles provide that certain categories of information are subject to presumptive disclosure, including information concerning treatment and interrogation of detainees, violations of human rights and international humanitarian law, arms sales, and corruption. Further, national security concerns cannot justify undermining the fundamental right of the public to have access to judicial processes, or the rights of victims of torture and other human rights abuses to seek a remedy.

A person credibly asserting that the government committed abuse should be entitled to challenge the government in court, and have access to information material to the case. Importantly the public, and not solely the parties, should have the right to contest restrictions to access, with meaningful and transparent judicial oversight.

In its Green Paper, the Secretary of State complains that the settlement of civil cases with former prisoners undermines the reputation of the intelligence services and leaves important questions unanswered. Yet the solution is not greater secrecy but more light. Litigation has been central to achieving some measure of accountability for national security overreaching, and to public disclosure of information concerning government abuses of power. It is litigation which has begun to uncover the role of the British government in the treatment of detainees at Guantánamo and in a secret web of prisons around the world—and to provide some measure of relief.

Allowing litigation to proceed only under a cloak of secrecy does a disservice to the litigants, but also to the public and the rule of law.

Source: Open Society Foundation

Zuma 'disconnected from reality' on corruption: DA

President Jacob Zuma's remarks about corruption show he is "completely disconnected from reality", the Democratic Alliance says.In his reply on Thursday to debate on his state of the nation address, Zuma said "most of the corruption you read about in the media is exposed as a result of the work of government and its agencies", DA spokesman Dion George said. "These are the words of a president who is completely disconnected from reality."

South Africa's major corruption scandals had not been broken by government, but by the media, and the opposition. These included the arms deal, to which former president Thabo Mbeki, Zuma, and then defence minister Joe Modise were all linked, he said. Another was the so-called travelgate scandal, involving a number of high ranking ANC MPs misusing parliamentary travel vouchers. George said others included the so-called oilgate scandal, which traced the involvement of an ANC-linked company in diverting money from a state contract to the coffers of the ANC. There was also the SA Police Service lease scandal, in which former public works minister Gwen-Mahlangu Nkabinde and suspended national police commissioner Bheki Cele were involved. Another was the Chancellor House/Hitachi controversy, which saw the ANC's front company landing lucrative contracts with the state.

"Nowhere is the government's attitude towards exposing corruption more clear than in its determination to see the Protection of State Information Bill pushed through Parliament in its current form," George said. Should this law be passed, journalists and whistle-blowers who reported on what government deemed secret would face up to 25 years in prison. It would be illegal to expose corruption and serious crime and the poorest of the poor would continue to lose out as government resources were redirected away from service delivery. "Government is not the last line of defence against corruption. The media and the opposition are."

This was why the DA continued to fight against the bill as it currently stood, and would fight for a strengthened public interest override to ensure that ordinary citizens and the media retained the right to know, George said. On Thursday, Zuma told the National Assembly South Africa was the only country with a "programme" to fight corruption. Zuma said it was "important to emphasise that most of the corruption you read about in the media is exposed as a result of the work of government and its agencies".

Amid laughter from opposition benches, he continued: "What we should remember is that South Africa is the only country that has a programme to fight corruption. It's not being fought anywhere else."

Source: Times Live

Malema verdict might not be something to celebrate

It is understandable that members of the chattering classes as well as other members of the public (including many rank and file members of the ANC yearning for a, perhaps mythical, simpler time when ANC Youth League members behaved properly and listened to their elders) on Saturday applauded the verdict of the ANC National Disciplinary Committee of Appeal (NDCA) which confirmed the guilty verdict against Julius Malema.

It could not have hurt that the verdict was delivered by a confident and in charge Cyril Ramaphosa, who reminded us again why so many of us have regretted the fact that he lost out to Thabo Mbeki when Mandela’s ANC had to appoint a Deputy President and why some of us still wistfully wonder what might have been if he had become our President instead of either Thabo Mbeki or Jacob Zuma.

Although some newspaper editors might miss Malema (given the fact that he has the ability to make news and sell newspapers), most of us might feel slightly relieved that this hypocritical demagogue has been dealt with so effectively and seemingly so decisively by the ANC senior leadership.

Yet, there is something about the way in which Jacob Zuma and Gwede Mantashe managed to clip Malema’s wings that sits uneasy with me. If they could do it to him, I wonder, could they do it to anyone else – including every single one of us who are members of the chattering classes and sometimes mock or criticise our dancing and singing President and every single ANC member who fails to toe the party line or who speaks out against the abuse of power or incompetence by some members of the leadership?

Is there not just a whiff of Stalinism about the way in which Zuma and Matashe got rid of a political enemy? Can we expect the pictures to be airbrushed next so that Malema will disappear completely from official ANC history?

Recall that Malema was convicted on three charges, two of them having been confirmed by the NDCA. First, he was convicted of contravening Rule 25.5 (1) of the ANC Constitution “by behaving in such a way as to provoke serious divisions or a breakdown of unity in the organisation”. His sin was that he addressed a press conference on 31 July 2011 at the conclusion of an ANC Youth League NEC meeting where he said amongst other things “in the past we know President Mbeki used that agenda very well …. The African agenda is no longer a priority and we think that there is a temptation by the coloniser and the imperialist to want to recolonise Africa in a different but sophisticated way and President Mbeki stood directly opposed to that type of conduct.”

The NDC found that through his utterances Malema sought to portray the ANC government and its leadership under President Zuma in a negative light which therefore had the potential to sow division and disunity in the ANC. The NDCA confirmed the reasoning of the NDC. The implications of this verdict are rather stark. Any ANC member who now suggests that an out of favour former President may have done some good and that he might have been better than an incumbent leader can now be kicked out of the Party for contravening Rule 25.5(1). If this principle had been applied consistently in the past, Mbeki would have been able to get rid of Zuma and most of his opponents long before the votes were counted at Polokwane. To his credit, he never used such tactics against them.

The verdict comes perilously close to suggesting that no ANC member will henceforth be allowed ever to criticise the incumbent ANC leadership in public. This is a rather handy precedent to set if one intends to stand for a second (or third) term in office or if one wishes to “manage” future leadership elections. To my mind the ruling on this point seems profoundly undemocratic and deeply dangerous and both ANC members and other members of the public should feel more than a bit worried about this move. One should not confuse approval for the outcome of this case (silencing Malema) with what is good for the ANC and South Africa and if one does, one underestimates the possible ruthlessness of the current bunch of ANC leaders aiming to secure a second term for themselves at Mangaung.

Malema was also convicted of contravening Rule 25.5 (c) of the Constitution of the ANC by behaving in such a way as to bring the organisation into disrepute. This was done for ostensibly slightly more plausible reasons, namely because he addressed a press conference on 31 July 2011 by making announcements amongst others:

* That the Botswana leadership of government poses a serious threat to Africa so we need a progressive government in Botswana;
* We are not going to sit with neighbours that conduct themselves like that. Botswana is in full co-operation with imperialists and the government is undermining the African agenda;
* The ANC Youth League would establish a Botswana Command Team which would work towards uniting all opposition forces in Botswana to oppose the puppet regime of Botswana led by the Botswana Democratic Party.

Now, imagine, for a moment that the statement did not relate to Botswana but to Zimbabwe and that Zwelenzima Vavi had made it and not Malema. Imagine Vavi had said that Robert Mugabe and his Zanu-PF had ruined Zimbabwe and that Cosatu would mobilise ANC members to oppose the murderous regime in Zimbabwe and to unite opposition forces in that country to try and oust Mugabe. If the Zuma and Mantashe had then proceeded to discipline Vavi and if he was then suspended from the ANC, would we all be cheering this on as we are doing with the Malema case?

Surely ordinary ANC members (yes, also those who helped to get rid of Thabo Mbeki at Polokwane, ostensibly because of his dictatorial tendencies) should feel more than a bit uncomfortable by the manner in which Malema had been dealt with? I ask again: will there be other casualties and will the same principles be used to get rid of other opponents who do not shut up? Will they go after Matthews Phosa? Will they go after Kgalema Motlanthe if he ever grew a backbone and actually indicated that he was interested in presidency of the ANC? Will they go after our charming, but arch-opportunist, Tokyo Sexwale, for showing rather too much ambition?

And should this not all be read against the background of the pending suspension of a senior NPA prosecutor, reportedly because she refused to drop charges against crime intelligence boss Richard Mdluli who is said to enjoy protection from “right at the top”? Remember that last year a secret report prepared by Mduli was leaked to the newspaper and that this report claimed that various ANC leaders met in January 2010 in Estcourt, KwaZulu-Natal to plot the ouster of Jacob Zuma. (Why crime intelligence was involved in such a story is unclear as it is perfectly legal in a democracy for political contenders within a party to plot against each other – as long as they use only legal means.)

Key members of the group that is said to have met are KwaZulu-Natal provincial premier Zweli Mkhize and Human Settlements Minister Tokyo Sexwale.

Remember also that the Secrecy Bill has just as much if not more to do with attempts by the intelligence agencies (firmly under the control of Zuma and Mantashe) to protect their agents and to prevent any exposure of their – legal or illegal – activities which we now know (thanks to Mduli) also focus on the succession race inside the ANC.

It might be that Malema is a special case and that the extraordinary precedent set by this disciplinary case against Malema will not be used against other critics of the current ANC leadership or against anyone who dares to show any ambition to take over the job of President or Secretary General of the ANC. But do not count on it.

Source: Constitutionally Speaking

ANC sets up its own committee on secrecy bill

THE ANC has moved to clamp down on a groundswell of opposition to the new secrecy law by setting up its own private committee to gather input on the controversial bill. The DA said in reaction that the ANC had abused parliamentary procedures, because the bill is set to be voted on by Parliament. The only committee that has the right to hear new submissions is a parliamentary committee. The ad hoc parliamentary committee on the Protection of Information Bill was dissolved when the ANC removed the vote on the bill from the parliamentary order paper last week.

ANC chief whip Mathole Motshekga has established the new ANC "information bill unit" in his office, said ANC parliamentary caucus spokesman Moloto Mothapo yesterday. Mothapo said the unit would soon hold public meetings with "ordinary people in the remotest village" to hear their views on the bill.

Dale McKinley of the Right2Know Campaign slammed the move. "They promised more public hearings, but these hearings are led by the ANC and not Parliament. If the ANC is only going to talk to its own people, who it picks and chooses, then it is turning its back on the public participation process," McKinley said.

Fatima Hassan of the Ndifuna Ukwazi campaign (dare to know) said "the remotest village argument is interesting as this is something that Parliament should have led in the beginning".

Source: The Sowetan

Mr Landers, a public interest defence is possible and widely accepted in democracies

This morning as I was driving to work, I heard Mr Luwellyn Landers, a member of the ad hoc Parliamentary Committee tasked with debating and rewriting the Secrecy Bill, talk about the impossibility of including a public interest defence in the Secrecy Bill. A public interest defence would protect whistle-blowers and journalists from wrongful prosecution for exposing corruption and maladministration in the public interest — even when they leak or publish the content of classified documents and even if these documents were classified top secret to protect national security.

Mr Landers claimed that it had been impossible for the Committee to include a public interest defence in the Secrecy Bill as this would turn the Bill into a useless document that would lose all effectiveness. Such a move would also go against “international practice”, he claimed.

Because I was listening to the radio, I could not see whether Mr Landers’ nose was growing longer as he spoke.

Mr Landers must be unaware of (or must deliberately be misleading the public about) the fact that the Council of Europe Convention on Access to Official Documents contains a public interest override. Article 3 of that treaty allows member states to deny citizens access to documents where this is ”necessary in a democratic society” and where it is “proportionate to the aim of protecting”, inter alia, national security, defence and international relations; public safety; the prevention, investigation and prosecution of criminal activities; privacy and other legitimate private interests; and  the economic, monetary and exchange rate policies of the State.

However article 3(3) of this treaty states that:

Access to a document may be refused if the disclosure of the information contained in the official document would or would be likely to harm any of the interests mentioned [above], unless there is an overriding public interest in disclosure.

Moreover freedom of information organisations such as article 19 hold that a public interest override is ”crucial to the effective functioning of a freedom of information regime. It is simply not possible to envisage in advance all of the circumstances in which information should still be disclosed, even if this might harm a legitimate interest, and to address these through narrowly drafted exceptions or exceptions to exceptions.”

Thus that organisation has published the Principles on Freedom of Information Legislation which makes it clear that a public interest defence is pivotal for any legal regime dealing with the classification of information, stating that:

Even if it can be shown that disclosure of the information would cause substantial harm to a legitimate aim, the information should still be disclosed if the benefits of disclosure outweigh the harm. For example, certain information may be private in nature but at the same time expose high-level corruption within government. The harm to the legitimate aim must be weighed against the public interest in having the information made public. Where the latter is greater, the law should provide for disclosure of the information.

These Principles were endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression, in his report to the 2000 session of the United Nations Commission on Human Rights as well as the Organisation of American States (OAS) Special Rapporteur on Freedom of Expression in his 1999 Report to the Inter-American Commission on Human Rights. A claim that “international practice” holds otherwise can therefore at best be said to be factually incorrect.

Mr Landers must also be  unaware of (or must deliberately be misleading the public about) the fact that the Canadian law dealing with state secrecy includes just such a public interest defence. The Security of Information Act of 1985, which regulates the classification of state secrets in Canada and also criminalises the leaking of  documents and possession of documents classified as secret, contains a specific public interest defence in section 15 of that Act.

I thought it might be helpful to discuss this section of the Canadian Act to assist the ad hoc committee in its possible future deliberations on the Bill. Section 15(1) of the Canadian Act states that no person is guilty of an offence even where that person reveals “special operational information” if the person establishes that he or she acted in the public interest. “Special operational information” includes classified information about such serious state security issues as the identity of spies, plans of military operations, and information about the operation of intelligence services.

Section 15(2) states that a person acts in the public interest if

(a) the person acts for the purpose of disclosing an offence under an Act of Parliament that he or she reasonably believes has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions for, or on behalf of, the Government of Canada; and (b) the public interest in the disclosure outweighs the public interest in non-disclosure.

Subsection 15(4) of the Canadian Act contains a set of factors that a court must weigh up when deciding whether the public interest in the disclosure outweighs the public interest in non-disclosure. These factors include:

(a) whether the extent of the disclosure is no more than is reasonably necessary to disclose the alleged offence or prevent the commission or continuation of the alleged offence, as the case may be;
(b) the seriousness of the alleged offence;
(c) whether the person resorted to other reasonably accessible alternatives before making the disclosure and, in doing so, whether the person complied with any relevant guidelines, policies or laws that applied to the person;
(d) whether the person had reasonable grounds to believe that the disclosure would be in the public interest;
(e) the public interest intended to be served by the disclosure;
(f) the extent of the harm or risk of harm created by the disclosure; and
(g) the existence of exigent circumstances justifying the disclosure.

The section also provides for other safeguards that would prevent the disclosure of information that would harm the security of the state without having satisfied the public interest criteria. However, even then these safeguards do not apply if the communication or confirmation of the information was necessary to avoid grievous bodily harm or death.

Were the South African Constitutional Court to be asked to consider whether the drastic infringement on the right to freedom of expression and the right of access to information currently contained in the Secrecy Bill were justified in terms of the limitation clause of our Constitution, it would ask what was “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. It would then have to consider whether the absence of a public interest override defence is usually included in legislation of democratic countries. The Court will probably find that it is usually included, given the fact that the inclusion of such a defence is required for all countries in Europe, endorsed by officials of the United Nations and included in Canadian legislation.

Mr Landers may of course argue that South Africa is a special kind of democracy and that our government requires more stringent secrecy laws to protect it from exposure … I mean the disclosure of sensitive information — even if it is in the public interest to do so. He may argue that we should not be measured against other democracies but rather against only partly democratic or authoritarian countries where secrecy is the norm instead of the exception. But I suspect that such an argument would not be politically palatable. No wonder he is wrongly claiming that including a public interest defence in our Secrecy Bill would be impractical and would not be required by “international practice”.

Source: Constitutionally Speaking