On Tuesday 22 November 2011, South African parliamentarians voted to pass the Protection of State Information Bill to Parliament’s upper house. If the Bill is accepted there, it goes to President Zuma to be signed into law. The day was named ‘Black Tuesday’ by the media and many civil society organisations, who oppose the Bill on the grounds that Government could use it in ways that will contradict open, transparent governance. ‘Black Tuesday’ is based on the apartheid era ‘Black Wednesday,’ when on 20 October 1977, the apartheid Government shut down three newspapers and arrested and banned Black Consciousness Movement-aligned activists.⁽²⁾ Some commentators feel that opposition groups are overreacting and that South Africans are addicted to exaggerated media accounts of politics.⁽³⁾ However, widespread concern about the Bill reflects the national grapple with notions of democracy, governance and the centrality of post-apartheid politics to the lives of all South African citizens. This CAI brief discusses the ANC Government’s controversial Protection of State Information Bill ⁽⁴⁾ and its possible implications for the future of South African democracy.

Protecting state secrets

As the name indicates, the Protection of State Information Bill, commonly referred to as the ‘Secrecy Bill’ or ‘Info Bill’, is designed to protect state information. Its fundamental purpose is to ensure that the state meets its duty to protect citizens by providing state agencies responsible for national security with the legal authority to classify information insofar as it meets the needs of national security. Security Minister, Siyabonga Cwele, stated on 16 November 2011 that the 1982 Protection of Information Act no longer sufficiently protects the country against espionage. “The foreign spies continue to steal our sensitive information in order to advantage their nations at the expense of advancement of South Africa and her people. The ANC Government may never allow such undermining of our national security to continue,” he said.⁽⁵⁾

The Bill, which has undergone 11 drafts and over 120 amendments, states that classification is to be used only to protect national security and not to keep unlawful conduct or incompetence secret, or to prevent public scrutiny, embarrassment and criticism.⁽⁶⁾ One can request the release of classified information and if such a release is refused, the person requesting the release has the right to have the refusal overturned by a court.⁽⁷⁾ As Jacques Louw points out, “we live in a grey world, a murky underworld of espionage, international terrorism, underhand financial dealings and in that world and the world of wars and the prevention of wars, state secrets may have become a necessary evil, as an exception to the rule.”⁽⁸⁾

Although the final draft of the Bill conforms to international standards, a large number of citizens are concerned about its implications for open governance and opposition groups still feel that there are shortcomings that render the Bill fundamentally flawed. For example, the Bill seeks to criminalise the possession and distribution of classified information but is ambiguous as to who has the authority to ‘classify’ information. Critics feel that the Bill will enable Government to hide corruption and punish whistleblowers, ordinary citizens and journalists who expose wrongdoing by imposing jail sentences of up to 25 years.⁽⁹⁾ Critics of the Bill include two Nobel prize winners: Desmond Tutu, a peace laureate, and Nadine Gordimer, a literature laureate. Even the so-called father of the ANC, Nelson Mandela, expressed reservations about the Bill.⁽¹⁰⁾

National security vs. ‘national unity’

The Right to Know (R2K) Campaign, a coalition of more than 400 civil society organisations, community groups and social movements, was formed in 2010 to mobilise for transparent and accountable government. To date, more than 25,000 people have joined the campaign.⁽¹¹⁾ This campaign has been instrumental in vocalising opposition and has been active in organising and suggesting amendments. According to R2K, some key issues with the final draft of the Bill include: ⁽¹²⁾

• Harsh prison sentences of up to 25 years for disclosing state secrets, with no protection for whistleblowers except in the most minor offences (this is the ‘whistleblower protection’ referred to by the Bill's supporters). The ‘Espionage’ and ‘Hostile Activities’ offences in the Bill may seek to punish those who leak information that could benefit a foreign state or non-state actor, but can still be used against those who leak information to serve a legitimate public good. Furthermore, those who harbour such whistleblowers may face a prison sentence, which effectively criminalises the families of whistleblowers.
• Anyone who comes into possession of a state secret faces up to five years in prison if they do not hand the information to police or security services. Thus, ordinary people can be punished for having access to information that was never their responsibility to keep secret. Effectively, this law treats ordinary citizens on the same terms that it would treat foreign spies.
• The Bill shuts off state security agencies from any kind of scrutiny or accountability to the public, with harsh prison sentences for accessing or sharing information relating to those bodies.
• There is no independent appeals mechanism available to citizens who wish to access information that may have been classified as secret without justification. Though there is a provision for a mostly independent body to review decisions, citizens will not have direct access to it.

The dynamics at play here thrust questions about South Africa’s majoritarian democracy into the spotlight. The ANC majority is a powerful decision-maker and non-supporters appear to feel excluded from the process. The consultation process on the Bill was ‘hijacked’ when an ANC committee was introduced in September 2011 to lead the process. Judith February, Programme Manager of the political monitoring and information service at the Institute for Democracy in Africa (Idasa), described the ANC’s move as an unwise “procedural anomaly” that conflated the ANC with parliament and in effect, undermined the legitimacy of the democratic institution.⁽¹³⁾ The Parliamentary ad hoc committee has furthermore been accused of “last-minute drafting” that ensured that the Info Bill trumps the Promotion of Access to Information Act, which promotes citizens’ right to know.⁽¹⁴⁾

Recent news of ANC conduct has further stoked public suspicion of a hidden ANC agenda. Two ANC members who did not vote on 22 November, Prof Ben Turok and Gloria Borman, now have to explain their decision to an ANC committee and may be charged to appear before the party’s disciplinary committee. The ANC says its MPs are expected to “toe the party line.”⁽¹⁵⁾ Security Minister Cwele also said that he was concerned that a total of 34 ANC MPs were absent from the National Assembly during the 'Black Tuesday' vote.⁽¹⁶⁾ The question then arises as to whether there is a link between ANC intolerance of internal dissent and the Info Bill saga, which is widely perceived as an ANC attempt to legalise secrecy over its management affairs. “The minister championing the legislation is none other than Travelgate fraudster and current Minister of Intelligence Siyabonga Cwele, perhaps better known for his own ignorance over his wife’s lucrative international illegal drug business. He maintains that the Bill is primarily about state security,” writes well-known South African social commentator and 5fm DJ, Gareth Cliff, on his blog,⁽¹⁷⁾ in reference to various current corruption cases linked to government officials. Cwele said that former apartheid security officials are “information peddlers” who “take something with a little bit of truth and put false information in it. They then approach you and ask you to contract them to dig more. We have information that they make sure that they instil fear with the sole aim of making money.” He claims that the 2006 scandal involving the Scorpions and President Zuma was such a “fabrication of information.”⁽¹⁸⁾

Thula Bopela, ANC veteran and former member of liberation force uMkhonto weSizwe, recently expressed interesting views on the Info Bill developments.⁽¹⁹⁾ Condescendingly, he notes that citizens who disagree with Government on the Info Bill and believe media reports on the issue are “political humpty-dumpties.”⁽²⁰⁾ “South Africans love high-sounding phrases” and some are therefore likely to believe any report that refers to the ‘stifling of freedom’ and ‘unstitching the constitution.’⁽²¹⁾ In this piece, Bopela implies that the extended consultation period on the Bill resolved objections to it, as he neglects to acknowledge any of the issues raised by opposition parties and organisations. He quotes Steven Friedman to explain that the Government will not be able to use the Info Bill to stifle media reporting on corruption, but mockingly takes issue with Friedman’s questioning of Minister Cwele’s justification for the Bill: “Friedman expects a Minister of State Security to address the Nation and tell it who our enemies are and why we would be threatened if foreigners knew what our security agencies do. If Dr. Cwele did that, President Zuma would know from that date that he had appointed a buffoon to one of the most critical positions in his cabinet. He would have to fire the fellow. Security chiefs do not do that, anywhere in the world.”⁽²²⁾

Bopela patronises the idea of opposition to (female-led) ANC authority with his reference to DA parliamentary leader Lindiwe Mazibuko’s earlier statement that she would lead opposition to the Constitutional Court. “But we can all understand how Lindiwe's eyes shine when she imagines herself taking the Government to the Constitutional Court! A modern Joan of Ark, perhaps?” He then argues that “the whites” are in control of South Africa’s rugby and cricket, and posits that this illustrates irreconcilable differences between South Africans. He casts opposition to the Bill as a “reflection of the extent to which this nation is divided. South Africans are determined to be divided about almost everything...”⁽²³⁾ Bopela is arguing for a democracy wherein there is no opposition to the ANC, as he equates the country’s “acute” lack of “a national vision” with opposition to the ANC’s Information Bill. Is not democracy the celebration of the freedom to know, to speak, to choose political allegiance and exercise these rights? South Africans are practicing their democratic right to disagree with Government. If unity and a ‘national vision’ depend on ‘toeing the party line,’ as ANC MPs are expected to, South Africans are definitely divided about one thing – the meaning of democracy.

The way opposition to this Bill has been swept aside with seeming nonchalant arrogance is alarming. Will this majoritarian democracy handle future issues in the same way? “If the government succeeds in tarring the opposition to this bill as a rabble of unjustified whingers, they show their hand in another way – by patronising and underestimating the self-respect a great many South Africans have for themselves,” comments Gareth Cliff.⁽²⁴⁾

Concluding remarks

Hope for reform or abolishment of the controversial Bill rests first with the National Council of Provinces, which has the power to either reject the Bill or send it to President Zuma for approval. Critics’ second line of defence lies with the Constitutional Court. The Court will scrutinise the Bill in terms of whether it infringes on fundamental constitutional rights and whether it can be justified in a democratic society.

However, the ANC has revealed a cunning political face and it may be unable to regain the trust lost. “The ANC has shown that it is prepared to give little more than a polite nod to the people who elected, fought and died for it and to devote a lot more of its time to keeping [its] snout firmly in the trough of self-enrichment.”⁽²⁵⁾

NOTES:

(1) Contact Charlotte Sutherland through Consultancy Africa Intelligence’s Rights in Focus unit (rights.focus@consultanyafrica.com).
(2) South African History Archive Website, http://www.saha.org.za.
(3) Thula Bopela, ‘A nation addicted to hyperbole’, 28 November 2011, Politicsweb, http://www.politicsweb.co.za.
(4) View the most recent version of the bill here: http://www.pmg.org.za.
(5) ‘SA facing an increasing espionage threat – Siyabonga Cwele’, 16 November 2011, Politicsweb, http://www.politicsweb.co.za.
(6) Jacques Louw, ‘How do secrets serve public interest?’, 28 November 2011, Cape Times, http://www.iol.co.za.
(7) Ibid.
(8) Ibid.
(9) ‘“Black Tuesday” Secrecy Bill a step back from the Open Government Partnership’, 22 November 22 2011, Open Democracy Advice Centre, http://www.opendemocracy.org.za.
(10) Kathleen Chaykowski, “Right 2 Know calls to scrap secrecy bill”, September 1, 2011, The Mail & Guardian, http://mg.co.za.
(11) R2K website, http://www.r2k.org.za.
(12) Right2Know Campaign, ‘R2K responds to Cwele’s speech to Parliament’, 17 November 2011, http://www.r2k.org.za.
(13) Lynley Donnelly, ‘Outcry over ANC ‘hijack’ of information Bill’, 30 September 2011, Mail & Guardian Online, http://mg.co.za.
(14) Right2Know Campaign, ‘R2K responds to Cwele’s speech to Parliament’, 17 November 2011, http://www.r2k.org.za.
(15) ‘Turok and Borman read old version of Info Bill: Motshekga’, 24 November 2011, SABC, http://www.sabc.co.za.
(16) ‘Cwele warns of information peddlers’, 29 November 2011, Sapa, http://www.news24.com.

(17) Gareth Cliff, ‘The party’s over’, 22 November 2011, http://www.garethcliff.com.

(18) ‘Cwele warns of information peddlers’, 29 November 2011, Sapa, http://www.news24.com.

(19) Thula Bopela, ‘A nation addicted to hyperbole’, 28 November 2011, Politicsweb, http://www.politicsweb.co.za.
(20) Ibid.
(21) Ibid.
(22) Ibid.
(23) Ibid.
(24) Gareth Cliff, ‘The party’s over’, 22 November 2011, http://www.garethcliff.com.
(25) Ibid.

Written by Charlotte Sutherland ⁽¹⁾