Cwele determined to tighten the gag on us all

08 November 2012 - 02:09 By Brendan Boyle
Brendan Boyle
Brendan Boyle
Image: The Dispatch

Parliament faces a formidable test as deliberations on the Protection of State Information Bill head for another deadline that could end the negotiation on how much transparency we impose on our government.

Against the backdrop of the state's protection of the details of the upgrading of President Jacob Zuma's Nkandla homestead, the last leg of this so-called secrecy bill's passage through the legislature will, for ANC MPs at least, test the spirit of the constitutional separation of powers between the executive and the legislature.

The ad hoc committee of the National Council of Provinces has given itself until the end of this month to finalise its proposed changes to the much-amended bill, tabled two-and-a-half years ago by Minister of State Security Siyabonga Cwele.

The draft proposes a necessary legislative infrastructure for the creation, protection and deletion of state secrets. Apart from a fundamentalist minority who would like to see government operate with no secrets at all, there is near universal acceptance that we do need a framework for the management of secrets.

But the draft proposed in 2010, and the current version, which is much changed from the original, strike terror in the hearts of democrats in every party, including some in the ANC, who know that all governments need checks, balances and countervailing pressures.

The problem from the start has been overkill.

A sound idea was seized as an opportunity to impose a range of restrictions on access to information that were neither necessary for the business of good governance nor appropriate in a society committed, as ours constitutionally is, to freedom of information.

The result is a bill that would make it impossible to publish classified information in the public interest without risking long imprisonment.

With Zuma's private estate now declared a national key point, it would probably be impossible under the terms of the secrecy bill to publish details of what the taxpayer has built for him, and at what cost, without going to jail for a very long time.

The original draft was much improved during months of meetings of a National Assembly special committee.

Since then, it has been further improved in a similar round of hearings and negotiations in the National Council of Provinces' ad hoc committee.

But, in a last-ditch effort to exert the will of Zuma's increasingly furtive government, Cwele visited the committee recently and asked members to drop several of the improvements they had made to the draft they received from the National Assembly.

Among other things, he wanted minimum jail terms reinstated, and the return of a dropped clause that would protect his secrets from release under the Promotion of Access to Information Act.

"We are not putting undue influence on parliament, we are just putting our suggestions to them," he said in response to opposition charges that he was violating the constitutional separation of powers.

The constitution gives the executive - Zuma and his cabinet - the task of "preparing and initiating legislation". Parliament has the power to "pass legislation with regard to any matter".

Precedent and the specifics of the constitution give MPs absolute freedom to amend legislation.

Though he has been given more opportunities than anyone else to make his case during the long passage of this bill through parliament, Cwele does have a right to defend his original idea. But, in the context of a parliament dominated by a party that loudly proclaims the supremacy of its party structures over the judgment of its deployed members, Cwele's renewed appeal, after the repeated rejection of his most controversial ideas, looks a lot like "undue influence".

The question now is whether the ANC members who have been convinced by overwhelming public and legal opinion to soften the more Draconian elements of the bill will have the courage to stand by their decisions and politely decline Cwele's appeal.

If Cwele is perceived to be alone in his insistence on the need for absolute secrecy under all circumstances, MPs might stick to their guns. But if his message comes with the imprimatur of Zuma and his cabinet their decision might fall into the realm of pre-Mangaung positioning.

The need for tight security against media leaks is driven in the short term by the will to protect Zuma from scrutiny and from the possibility of his renewed prosecution for corruption and fraud.

Kgalema Motlanthe, his most likely rival when the ANC gathers next month to elect a leader, is the most powerful voice in the ANC for moderation in the approach to secrecy.

It is now too late for parliament to enact the secrecy bill into law this year, but the National Council of Provinces committee might yet be asked to settle on a final text to send back to the National Assembly and there could be an opportunity to score Brownie points before the trip to Mangaung.

Most South Africans think that carefully thought-out provisions for the exposure of secrets in the public interest should be written in.

But, if any still wonder what would be the right thing, they need look only at the slowly emerging truths about the massacre at Marikana and the obscene misdirection of public funds to Zuma's personal estate to know that we cannot allow the Protection of State Information Bill to pass in the form Cwele proposes.