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South Africa: Secrecy Bill Evokes Apartheid Era

AfricaFocus Bulletin
Nov 25, 2011 (111125)
(Reposted from sources cited below)

Editor's Note

"The new South Africa is not comparable to the evils of old. But on Tuesday, when parliament passed a state secrecy law, we were shamed. The ANC became like its apartheid predecessors. The party of Mandela ignored the man himself and muzzled whistleblowers, journalists and its own citizens. It defied its trade union allies and civil society, and used its majority to ram through the protection of information bill, which gives the state power to classify information and criminalise whistleblowers, journalists and anyone who comes into possession of such classified information." - Justice Malala

The bill passed earlier this week is not yet law. And if it becomes law, it will be challenged in the Constitutional Court. Nevertheless, its passage is an ominous indication of dominant views within the ruling ANC, evoking the practices of the apartheid era. It is being vigorously opposed by a wide range of civil society and legal and media professional groups, including the Nelson Mandela Centre of Memory, COSATU, and a wide range of others historically affiliated with the ANC.

This AfricaFocus Bulletin contains a selection of commentaries, beginning with Justice Malala's article in The Guardian, and followed by a number of other commentaries, made just before or after the vote in parliament.

These, as well as additional documents, are available in a helpful collection of press releases at: http://www.ngopulse.org/group/home-page/pressreleases, published by SANGONET.

For previous AfricaFocus Bulletins on South Africa, visit http://www.africafocus.org/country/southafrica.php

++++++++++++++++++++++end editor's note+++++++++++++++++

A law that shames South Africa

The ANC's state secrecy law belongs to the apartheid era. The party of freedom has turned into a party of fear

Justice Malala

http://guardian.co.uk, 23 November 2011

On Tuesday morning my friend Stefaans Brummer, arguably South Africa's best investigative journalist, sent me a text message. "When I'm incarcerated at Parkview police station, please bring me coffee, a muffin and a hacksaw blade," he wrote. I don't do coffee or muffins, I replied jokingly, but I might deliver the hacksaw.

It was easy banter between friends, but there was a chill in our bones. Last Friday Brummer's newspaper, the Mail & Guardian, had been prevented by President Jacob Zuma's spokesman from publishing a story. It had alleged that the spin doctor had lied to investigators about his role in the taking of bribes in South Africa's notoriously crooked arms acquisition in the late 1990s.

Brummer and his colleagues were threatened with 15 years in jail. In response, they blacked out the front page of the paper and the story. This proud anti-apartheid paper looked last Friday exactly as it would have in 1989, at the height of apartheid censorship and harassment of journalists.

It is not the first time that journalists have been harassed and threatened with jail. Last year an investigative journalist who exposed multimillion-pound police corruption was arrested, driven through the night to a remote location and questioned at 2am.

Over and above the petty harassment, the ANC has vigorously pursued attempts to set up a government-led media appeals tribunal to regulate the print media. Since the ascent of Zuma and his coterie of securocrats to power in 2009, we journalists have been living with our hearts in our mouths, afraid that the party of Nelson Mandela would veer away from the open society it had fought for and join the likes of Zimbabwe and Equatorial Guinea - countries whose secrecy laws allow them to jail journalists at will.

For years we had pointed to the north, saying such draconian laws would never arrive here. Not in the land of the ANC, Africa's oldest liberation movement, steeped in the values of openness and dedicated to the fight against corruption.

The new South Africa is not comparable to the evils of old. But on Tuesday, when parliament passed a state secrecy law, we were shamed. The ANC became like its apartheid predecessors. The party of Mandela ignored the man himself and muzzled whistleblowers, journalists and its own citizens. It defied its trade union allies and civil society, and used its majority to ram through the protection of information bill, which gives the state power to classify information and criminalise whistleblowers, journalists and anyone who comes into possession of such classified information. Journalists such as Brummer and their sources face up to 25 years' imprisonment.

The bill also seals off state security agencies from any kind of scrutiny or accountability to the public - meaning that any investigation that, for example, mirrors the work done by American journalists to expose Richard Nixon and the Watergate scandal would be criminal. Crucially, the bill has no public interest defence.

After the legislation was passed, members of the South Africa National Editors' Forum - all dressed in black - left parliament. ANC MPs jeered and shouted: "Bye, bye."

Power and incumbency have not been easy for the ANC. The party, which turns 100 in January 2012, is riven with divisions. Corruption allegations surface every day, with the World Economic Forum pointing out that corruption is among the top four concerns of potential foreign investors.

This has led to paranoia and fear in the party. State security agencies are used to target political opponents, with the latest scandal leading to the head of domestic intelligence being fired for spying "for the wrong side" (opponents of Zuma) two months ago. The party of freedom has turned into the party of fear. In such a climate, the media and civil society have become the enemy.

But for those of us who have watched the passage of this bill with a growing horror, the battle is not over. The bill goes before the second house of parliament and, if passed, to the president for signature. We are hoping that Zuma will throw it back. Should he sign it into law then a constitutional challenge awaits.

For now, though, we feel betrayed by a party that once made media freedom one of its pillars. The ANC, riven by internal battles, is beginning to take the country down with it. It has lost its way. It has blinded itself. For us, it is time to prepare for a new, long and hard struggle.


Members of Parliament Should Reject the 'Secrecy Bill' Tuesday, November 22, 2011

* We call on all South African Members of Parliament to vote against the Protection of State Information Bill this week;

We are civil society organisations who support the Right2Know campaign. For the past year our members have spoken out against the Protection of State Information Bill (Secrecy Bill) and protested against it becoming law on the basis that many provisions in it violate the Constitution.

The Minister of State Security, Siyabonga Cwele, speaking in the National Assembly on 16 November 2011, wrongly and falsely labelled people and groups opposing provisions of the Secrecy Bill 'local proxies to foreign spies'. The Minister said that 'foreign spies' were paying civil society groups to oppose the Secrecy Bill. These inappropriate and unfortunate remarks were clearly aimed at the Right2Know campaign.

We note that the Right2Know campaign has always made a list of all of its funders publicly available on its website. We therefore challenge the Minister to provide evidence to support his allegation, which in our view is defamatory. As a member of Cabinet and the Executive, the Minister's comments show a disregard for Parliamentary processes and the valid and legitimate concerns about the implications of the Secrecy Bill that have been raised by many civil society organisations, including Congress of South African Trade Unions (COSATU).

We are deeply concerned that even though during September 2011 the ANC Chief Whip promised extensive provincial community consultation this is yet to take place. The Secrecy Bill has now made a sudden and speedy reappearance on the Parliamentary programme for this term (the Secrecy Bill was withdrawn from the Parliamentary programme in September 2011).

Instead of engaging with the substantive local and international criticism of many provisions of the Secrecy Bill, the Minister has chosen to cast unfounded and unconstructive aspersions and to ignore the concerns of communities campaigning for an open and transparent society that seeks to expose wrongdoing, corruption and mismanagement.

We understand that Members of Parliament (MPs) will be expected to vote for the Secrecy Bill today so that it can become law by the end of 2011. We note that while there have been some improvements in the current draft of the Secrecy Bill compared to its original version, there remains several provisions that we believe are fundamentally flawed and unconstitutional.

We reiterate that the lack of a public interest defence clause and the excessive penalties including incarceration for whistle-blowers and those in 'possession' of documents that are accordingly classified as 'state secret' by the Security Cluster undermine our Constitution. The Secrecy Bill, as it currently stands, will severely limit civil society and the media's ability to expose corruption and mismanagement in government and elsewhere. Thus far, no convincing argument has been advanced to justify why a public interest defence clause should be rejected both for whistleblowers and those in possession of classified information where it is in the public interest to disclose such information, and why the penalty provisions should not be revised.

In addition, as is evident from the battle that the Mail & Guardian is engaged in regarding the provisions of the National Prosecuting Authority Act and the recent laying of criminal charges against those journalists in possession of information classified as secret by the lawyers acting for the Presidential spokesperson Mac Maharaj, it is clear that the real possibility exists for the state and its officials to take steps to punish and penalise whistleblowers, community activists and journalists for being in possession and/or disclosing information in the public interest, where such information should not be a state secret. What the 'Maharaj - Mail and Guardian' censorship debacle shows is that the threats that the Right2Know campaign has warned South Africa about for over a year now, with respect to the risks inherent in the passing of this law, are now no longer hypothetical given that criminal charges have been laid against the journalists involved.

If the Secrecy Bill becomes law as is, MPs that we elected into power, will be saying to ordinary South Africans that it is okay to punish the people who disclose and write about corruption and mismanagement in government and the corporate sector. It will entrench the capacity of politically powerful people and institutions, especially those in government, to hide information and generally act without transparency or consequence.

As civil society organisations whose members are dedicated to upholding our Constitution and all the rights and freedoms enshrined therein, we reject the Secrecy Bill in its current form because we believe that it erodes our freedoms and violates our democratic rights. We will oppose it should it become law by subjecting it to a legal challenge, along with other groups, and by marching in the streets.

Therefore

  • We call on all MPs including African National Congress (ANC) MPs not to follow the three-line whip (in which ANC MPs are required to vote in favour of the bill) this today, and not to vote in favour of the Secrecy Bill in its current form;
  • We call on President Zuma to show leadership by stopping this process and ensuring that the Security Cluster in government does not assume such wide-ranging classification and punitive powers. President Zuma and the ANC should recommit itself and this process to proper community oversight and consultation;
  • If the Secrecy Bill is passed into law, we nevertheless hope that President Zuma will refer the matter to the Constitutional Court to seek a declaration of constitutionality. If not, we will join Right2Know and other groups that seek to declare many provisions in the current version of the Secrecy Bill unconstitutional;

This is a joint statement issued by the Treatment Action Campaign, Equal Education, Social Justice Coalition, SECTION27 and Ndifuna Ukwazi.

For more about the Treatment Action Campaign, refer to http://www.tac.org.za

For more about the Equal Education, refer to http://www.equaleducation.org.za

For more about the Social Justice Coalition, refer to http://www.sjc.org.za

For more about SECTION27, refer to http://www.section27.org.za

For more about Ndifuna Ukwazi, refer to http://www.nu.org.za


Protection of State Information Bill - An Expression of Concern

Tuesday, November 22, 2011

The Nelson Mandela Centre of Memory, together with the University of the Witwatersrand School of Law, has been engaged in processes of dialogue around the Protection of State Information Bill since its first emergence as a draft piece of legislation in 2008. From the outset we have sought to ensure that the Bill meets standards of constitutionality and aspirations for freedom of information and expression while at the same time providing protection for legitimate state secrets.

The drafting process has taken a long path, with some steps forward and some back. We have convened a number of stakeholder focus groups with the aim of encouraging a dialogue between the Bill's drafters and its opponents. Much has been achieved, but the Bill is not yet at a point where it can be said to have met the above-mentioned standards and aspirations.

The Protection of State Information Bill will be passed by the National Assembly today. It will then be referred to the National Council of Provinces for further consideration. Other constitutional processes lie in its likely future. With this in mind, the Nelson Mandela Centre of Memory has compiled a position paper setting out its remaining areas of concern with the Bill and proposing revisions. We will continue to engage with the development of appropriate and balanced legislation in this area of law, one crucial for our constitutional democracy.

For more about the Nelson Mandela Centre of Memory, refer to http://www.nelsonmandela.org


The Secrecy Bill Will Affect Your Right to Information

Tuesday, November 22, 2011

Throughout the course of the debate on the Secrecy Bill, government representatives gave numerous assurances that the proposed legislation would not impact on the citizen's right to information under the Promotion of Access to Information Act (PAIA). Despite those assurances, the final version of the Bill passed by the ad hoc committee restricts the right to information under PAIA.

After assurances from government in mid-November last year that the Bill would be aligned with PAIA, less than three weeks prior to the passage of the Bill by the ad hoc committee a few key provisions were inserted that completely reverse the position between the Bill and PAIA.

Currently PAIA overrides any legislation that prohibits or restricts the disclosure of information in a manner inconsistent with PAIA. PAIA is therefore the supreme law relating to access to information in South Africa and any decision to refuse access to requested records must be based on one of the grounds of refusal set out in PAIA. New section 1(4) of the Secrecy Bill, inserted on 31 August (just 6 days before the Bill was passed by the ad hoc committee), reverses that position so that the Bill will override PAIA such that regulators will be able to deny access to records that have been classified under the Bill even if none of the grounds of refusal under PAIA are applicable.

This means that restrictions on the release of information under the Secrecy Bill will apply even where PAIA would require that information to be released. It also means that procedural differences between the Bill and PAIA will be resolved in favour of the Bill.

In light of this there are two key areas of concern where the Bill will have a substantial and negative effect on the right to information under PAIA:

  • The Secrecy Bill effectively inserts a new ground for refusal into PAIA, allowing access to documents requested under PAIA to be refused merely on the basis of their status as a classified document. The Secrecy Bill provides that a classified record must be declassified before it is released. If it is released prior to declassification both the person releasing and the person receiving the information may be subject to criminal prosecution. The test for declassification does not conform with any of the grounds for refusal under PAIA;
  • The Secrecy Bill extends the timeline for responding to requests. Where a request is made for access to classified information, the information holder must consider whether the information can be declassified. There is no requirement in the Secrecy Bill that this declassification process be undertaken in any specific time period, only that the period is 'reasonable". This is inconsistent with the 30-day time period for responding to requests under PAIA and will cause further delays in a system already fraught with delay.

Accordingly, if the Secrecy Bill is passed in its current form, it will represent an erosion of the right to information in South Africa without justification. Adequate protections for records containing issues of national security, defence and international relations are already provided under PAIA. Accordingly, the Bill must be aligned with PAIA by providing that requests for information must be dealt with in accordance with the provisions of PAIA, including both the grounds for refusal and timelines provided in that Act.

For more about the Nelson Mandela Centre of Memory, refer to http://www.nelsonmandela.org


Wits University Senate Statement on the "Secrecy Bill"

Statement on the "Secrecy Bill"

23 November 2011

"The University of the Witwatersrand notes with concern the decision by Parliament and the ruling African National Congress to pass the "Secrecy Bill", which we believe stands as a deep threat to the fundamental principles enshrined in our Constitution.

The Protection of State Information Bill may be a necessary replacement for apartheid-era legislation, but in its current form would obstruct the access to information citizens need to ensure transparent and accountable governance. The Bill entrusts the power of classification, and the avenue of appeals against classification, to those who might benefit from the obscurity provided by classification. The Bill allows for 'national interest' to be invoked in justification of classification, but provides sufficient latitude of interpretation of what constitutes the 'national interest' to allow unscrupulous use of this measure. It remains silent on the 'public interest'. The current formulation of this Bill and the heavy penalties it mandates would impede both the right of the public to legitimate freedom of information and the intellectual enquiry that is the essence of academic work.

The proposal for a Media Appeals Tribunal, currently under consideration by the ANC, might enable direct State suppression of the freedom of expression. Accountable to Parliament, which is constituted overwhelmingly by the ruling party, the Tribunal could undermine the media's necessary role in informing society. The ruling party's antagonistic attitude to the print media has been illustrated by the recent public eviction of a journalist from a media conference and - very disturbingly - by the arrest and detention of a journalist at the order of a politician. Even in the absence of such provocation the proposed tribunal would represent an unacceptable intrusion into media freedom.

Taken together, the two initiatives attack key principles that underpin a democracy - access to information and freedom of speech - and threaten this country's widely admired constitutional order. The University expresses its deep concern at the implications of these measures for civil liberties and the pursuit of intellectual enquiry, and insists that, in their current form, they be abandoned."

Read Wits' 2010 statement on the Protection of Information Bill and the Media Tribunal Process
http://www.link2media.co.za/index.php?option=com_content&task=view&id=9878&Itemid=12

The Nelson Mandela Centre of Memory, together with the Wits School of Law, has been engaged in processes of dialogue around the Protection of State Information Bill since its first emergence as a draft piece of legislation in 2008. Read an analysis of the Bill's remaining flaws:
Summary Version
http://www.nelsonmandela.org/images/uploads/POSIB_summary.pdf

Readers are also directed to a statement issued in 2011 by South African Journalism Schools:
http://ccms.ukzn.ac.za/index.php?option=com_content&task=view&id=1094&Itemid=24


SANEF: Outcome of National Assembly Vote on the Protection of State Information Bill

Wednesday, November 23, 2011

The South African National Editors' Forum (SANEF) is saddened by the decision of 229 African National Congress (ANC) members of Parliament to vote in favour of the Protection of State Information Bill today.

South Africans from all sectors of society have made it clear that they believe the Bill is a danger to democracy, and a threat to their rights. We had hoped MPs would hear the clamour at the gates of the legislature, but they chose to stop their ears.

Editors from around the country observed the debate in the National Assembly, and were struck by the intensity with which opposition parties sought to repudiate the bill in its current form and to delay its passage.

After the final vote, the editors rose as one and left the public gallery in protest.

This need not be the end of the road, however. The remaining serious flaws in the Bill can still be remedied in the National Council of Provinces, or returned to Parliament by President Jacob Zuma.

If that doesn't happen, the Bill has only one destination - the Constitutional Court.

SANEF hopes legal action won't be necessary, and that the occupants of the people's parliament will seize this last chance to do the right thing.

This bill has been the source of much division in our country and the battles around it undermined the nationbuilding and cohesion we developed in the run-up to, and during, the World Cup. The damage to our reputation as an international beacon of democratic behaviour and good governance is immeasurable.
SANEF will continue to work with fraternal organisations and civil society formations to stop this bill.

We will also engage with ANC and government leadership on this matter with the objective of finding a solution that builds and supports South Africa's constitutional democracy.

For more information contact:

Femida Mehtar
Executive Director
South African National Editors' Forum
Tel: +27 (0) 11 484 3630 / +27 (0) 11 484 3617
Fax: +27 (0) 11 484 3593
Mobile: +27 (0) 84 784 2006
E-mail: director@sanef.org.za

For more about the South African National Editors' Forum, refer to http://www.sanef.org.za


AfricaFocus Bulletin is an independent electronic publication providing reposted commentary and analysis on African issues, with a particular focus on U.S. and international policies. AfricaFocus Bulletin is edited by William Minter.

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