Secrecy Bill tarnishes SA image

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South Africa’s record as a beacon of democracy has been tarnished by the Protection of State Information Bill, better known as the “secrecy Bill, legal advocacy bodies say.

“The South African Constitution is a model to the world in its endorsement of the rule of law. The core principle is that no one is above the law, as interpreted by a judiciary that is independent of government influence,” Freedom Under Law and the Bingham Centre for the Rule of Law in London said in a joint statement.

The groups said South Africa’s Constitution was one of the first to include the right of access to information, in order to promote government accountability. The recent proposals also threatened an about-turn in South Africa from the rule of law towards authoritarian attitudes of the past. “In particular, the [secrecy Bill] will curtail openness of the exercise of public power, make it more difficult to combat corruption and will reduce governmental accountability and fair sentencing in trials.”

By contrast, the South African Communist Party (SACP) said on Sunday “that the intent and scope of the Bill were absolutely essential for the consolidation and flourishing of our democracy”.

The SACP said while the South African National Editors Forum had “persuaded itself and parts of the public that the Bill is primarily directed at the media”, the real challenge facing South Africa was factionalised intelligence and security services embroiled in “palace politics and tender-preneuring rivalries”.
“This Bill seeks, quite correctly, to criminalise information peddling, pay-as-you-go information declassification and the by-passing of what must now become clearly defined procedures for handling sensitive state information”, they said.

Meanwhile, ruling African National Congress parliamentary Chief Whip Mathole Motshekga claims the party has never sought to impose the Bill on its members and society. He said the ANC had initiated internal debates within the peace and stability national executive committee (NEC) sub-committee and the corresponding study group in Parliament. “In both these forums ANC members were offered opportunities to debate the desirability and otherwise of the Bill and the principles underlying it.”

He said in both forums members engaged one another and sought to reach consensus. The same approach was adopted within the executive. “When sufficient consensus was achieved, the Minister of State Security, Comrade Siyabonga Cwele, tabled the Bill for consideration by the relevant portfolio committee in Parliament.” He said the ANC’s detractors had sought to use the process leading to the passage of the Bill by the National Assembly to entrench their perception that the ANC was divided. “This perception was reinforced by the fact that some individuals who once served in the Cabinet or constitutional development structures of the ANC opposed certain aspects of the Bill.”

Motshekga then postulated the ANC postponed tabling the Bill in the National Assembly and embarked on an internal democratic process to ensure that the ANC in and outside Parliament were united — and that the public — especially the silent majority — was given the opportunity to express themselves on the Bill. “We also ensured that the public participation process is inclusive of all South Africans, regardless of political affiliation, who sought to make inputs,” Motshekga said.

In another development, SAPA reports that in a bid to keep a tight rein on the processing of the Bill in the National Council of Provinces (NCOP) the ruling party has deployed several senior members to a new ad hoc committee that will work on the proposed legislation. The NCOP resolved to establish the committee after the Bill was passed by the National Assembly and referred to the council for concurrence. The committee is comprised of 15 members — 10 from the ANC, two from the Democratic Alliance and one each from the Inkatha Freedom Party, Congress of the People and the Independent Democrats.

A source close to the process told the Mail & Guardian that the ruling party had nominated senior MPs, including NCOP chief whip Nosipho Ntwanambi and the NCOP chairperson of committees, Raseriti Tau, to ensure that the party retained control of the political content of the Bill.

The source, who was not authorised to comment officially, said Ntwanambi will be the whip of the committee and her deployment will also provide a direct link to Luthuli House. Two other sources said the ANC had not been happy with the handling of the Bill while it was being processed by the National Assembly’s ad hoc committee.

In a further development, new Special Investigating Unit (SIU) head Willem Heath has accused former president Thabo Mbeki of “initiating” rape and corruption charges against President Jacob Zuma, City Press reported yesterday. In an interview with the newspaper, Heath was quoted as saying that fraud convicts Shabir Shaik and Tony Yengeni were “sacrificed” in the arms deal investigation and that Mbeki “dictated” to the National Prosecuting Authority in Zuma’s rape trial. He also said Judge Hilary Squires’ judgment in the Shaik corruption trial was flawed as there wasn’t sufficient evidence to convict him.

Mbeki’s spokesman Mukoni Ratshitanga told the newspaper when approached for comment that the former president was abroad and was expected back next week. “His office will study the article and quotations that will be attributed to Advocate Heath and determine whether, how and when to respond,” Ratshitanga was quoted saying. Zuma was acquitted on rape charges in 2006 and the corruption charges were dropped in 2009.

Heath was appointed by Zuma in the past week to replace Willie Hofmeyr as the head of the SIU. Hofmeyr now only heads the Asset Forfeiture Unit. Heath was first appointed by former president Nelson Mandela in 1996 to establish the SIU. He however resigned in 2001 after the Constitutional Court found that a sitting judge could not head a long-term investigating unit.



Heath then set up Heath Executive Consultants, a firm offering legal advice and forensic investigation, but his most high-profile clients were those engaged in a protracted legal, political and media war with Mbeki and former prosecution boss Bulelani Ngcuka. The newspaper also reported that Mbeki, who was president at the time, refused to grant Heath early retirement and as a result he had to resign as a judge — a decision that, according to Heath, left him a “pauper”. Since Heath left the SIU unit in 2001 he hitched his fortunes to the anti-Mbeki camp, first by working for mining magnate Brett Kebble and then by adopting Zuma’s cause. Mbeki made an enemy of Heath when the former president intervened to block the SIU’s involvement in the initial investigation of the arms deal, SAPA and the Mail & Guardian report.