Bill remains unconstitutional

2013-09-19 00:00

HOW good is the legal advice available to Parliament? And how much do its ANC members care about constitutionally protected freedoms?

These are just two questions that arise from last week’s referral back to the National Assembly of the Protection of State Information (Secrecy) Bill by President Jacob Zuma.

Last April, it was supported almost unanimously by the ANC, yet the presidency has problems with two sections: those that deal with failure to report possession of classified information and improper classification. The problems are essentially technical, a lack of meaning and coherence, reinforcing the opinion of the Archival Platform group that described the bill as a “dog’s breakfast”.

This group points out that the Secrecy Bill invalidates progressive aspects of the Promotion of Access to Information Act and effectively relegates it to the status of second-tier legislation. Debate will continue to rage about the precise contents of the bill. It is indeed a crucial piece of legislation that defines the future strength of our democracy and represents a watershed. So while it is correct that the presence or absence of a public interest defence clause, and the level at which the bar is set for document classification, are matters of deep concern, the history of this bill provides disturbing evidence about the broader political climate.

This legislation is not only about covering up fraud and corruption by political and economic elites. It concerns the issue of where power lies in South African society. Its main purpose is to place control over the flow of information firmly in the hands of the majority party and delegitimise the public right to knowledge about the way the country is governed. In the eyes of the ANC, the national interest is synonymous with its own.

The Secrecy Bill is indicative of the extent to which the ANC’s basic principles have changed in 20 years. It has become, given Zuma’s lack of clear direction except his own political survival, a right-wing party dominated by securocrat thinking, prey to corrupt racketeers and exploited by racial nationalists. Richard Calland has pointed out the extent to which the ANC has become a party of “political mongrels”.

It has certainly lost its intellectual bearings. Siyabonga Cwele defamed the exemplary Right to Know (R2K) campaign as the Right to Lie. The Secrecy Bill’s opponents, defenders of the Constitution and its values, have been accused of being foreign agents, the proxies of spies.

Where does this extraordinary level of paranoia come from? It bears a strong resemblance to the political dementia of the closing years of apartheid, and has no rational explanation in present circumstances. This suggests something altogether more sinister — a political culture within the governing party actively hostile to the values of the Constitution.

Civil society is generally thought to be in decline, mainly because a number of high-profile campaigning institutions have recently closed down as funding has dried up. But R2K’s campaign has shown an ability to sustain a mass-based movement relating high-level politics to everyday lives. Increasing numbers of ordinary people understand exactly what restrictions on information mean in terms of service delivery, for example.

The irony is that their main opponents are members of Parliament, supposed guardians of the Constitution against executive excess. The weakness of our parliamentary system is glaringly obvious despite the strength shown from time to time by its committee structure.

What has happened to those in the ANC who sustained its legacy of commitment to civil rights? Before he died, Kader Asmal loudly pointed out the multiple dangers posed to the Constitution. There was a sense that politics was organising along a new fault line separating constitutionalists from those with anti-constitutional agendas. But to be meaningful, this would require significant dissent from within the ANC. Instead, there is a deafening and troubling silence.

In the years of the apartheid regime, a culture of impermissibility reigned. Legislation deliberately criminalised what would be regarded as legitimate political activity in any democratic state. But the Secrecy Bill goes down a similar road, potentially criminalising exposure of wrongdoing in all sectors of government that could be revealed by investigative journalism and whistle-blowing. This is far out of kilter with constitutional intentions.

Taken together with an increase in the censorship of violence as shown by the recent torching of Karabo FM, a Sasolburg community radio station caught up in local disputes about municipal boundaries, the picture is bleak. From the highest levels of government to the grass roots, there is a supreme contempt for the Constitution.

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