amaBhungane
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Finding truth in a culture of secrecy

By Vinayak Bhardwaj

The release of the “Nkandla files” reported in last week’s Mail & Guardian was the product of a long battle against a fast-calcifying culture of secrecy in our public bodies. Through bureaucratic delays, misinterpretations of the law and the overuse of “national security” as a basis for non-disclosure, public and private bodies continue to thwart the public’s right to know.

In releasing the documents, Public Works Minister Thulas Nxesi signed a supplementary affidavit refuting his earlier claim that the requested documents were so replete with security-sensitive information that they could not be disclosed without compromising the security of President Jacob Zuma. This volte-face, won at a considerable expense in legal costs, nonetheless marked a victory for access to information and for the Promotion of Access to Information Act (PAIA) itself.

While it remains to be determined whether the released documents comply fully with the original request submitted by amaBhungane, it is clear that the reasons for withholding the information were largely baseless. It is further evident that the current attempts to withhold the “Top Secret” task team report cannot possibly be justified purely by national security concerns.

In a report titled “Paper Wars”, the South African History Archives (Saha) conducted a detailed assessment of the state’s compliance with PAIA requests. Its findings are concerning.

In 2012, out of 159 requests submitted to various public and private bodies, 102 were refused outright or received no reply. Tellingly, of the 79 requests Saha submitted over the period 2001-2011, 16 were refused on security-related grounds. However, when Saha appealed against seven of the 16 refusals, four were overturned in full or in part.

This reflects a growing culture of secrecy across state bodies, of which the high-profile Nkandla case was by no means an unusual example. Thus almost all PAIA requests received are settled after court proceedings have been instituted.

And even then, the attempt to extract information is never entirely successful. For over four years, M&G media has been locked in a battle to obtain the report into the 2002 Zimbabwe elections prepared by Justices Sisi Khampepe and Dikgang Moseneke. Having successfully won four court cases, the documents continue to elude this newspaper with no apparent legal basis. The report remains classified.

As Saha and others have noted, the general trend towards PAIA compliance typically entails delayed responses, in the rare event that a response is received.

No reasons are offered when a request for information is refused. There is an unreflective “knee-jerk” rejection of requests for information, forcing applicants to resort to litigation in order to secure information via the legislation. And in most instances, the resistance to the request for information is often withdrawn once court action has been instituted, typically on legal advice that there is no basis for non-disclosure.

Taken together, these cases reveal a state struggling to uphold the standards of openness and transparency that our Constitution demands.

In amaBhungane’s court papers, advocate Wim Trengove noted that the original refusals by the department of public works, relying on apartheid-era laws such as the Protection of Information Act and the National Key Points Act, overlooked the fact that PAIA overrules these laws.

The department ignored the internal appeal launched by amaBhungane against its decision, which eventually forced us to go to court. Only on reaching court did the department present its security-related arguments for non-disclosure.

Discharging its constitutional duties only under duress of legal proceedings reflected what Trengove described as a “disdain for the law”. Such disdain has far-reaching consequences.

It is vital to recognise that access to information is crucial for the exercise of the rights enshrined in South Africa’s Constitution. In the concluding chapter of “Paper Wars” historian Verne Harris remarks: “Under apartheid, freedom of information was one of many strangers. And it remains so. The call of justice is to embrace this stranger and to offer it whatever hospitality we can muster.”

Buried somewhere in the 12 000-page trove of documents is an echo to that call.

Vinayak Bhardwaj is the advocacy coordinator of the M&G Centre for Investigative Journalism (amaBhungane).

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  • 6 Responses to “Finding truth in a culture of secrecy”

    1. Tofolux #

      @vinayak, if what you are saying is premised on a truth, you are in fact concluding that parts of our constitution is unconstitutional. I am of the mind that there is something sinister in the M&G ‘battles’ with the state over information. If this is true, the counter-question that needs to be posed in whose interest are you acting cos surely you are not acting in my(public) interest and you clearly have no public mandate. The conclusion that one draws is that the action is highly political and if this is so, why does M&G mislead the public and not declare their true intentions. There is a saying, you can mislead people most of the time but you cannot mislead people all of the time. Hence what is your role and what is your responsibility in instance and in South Africa today, as a media house? I am reminded of Afriforum whose preamble says that they are the oldest trade union in SA but that they are apolitical. The obvious question is that if you are the oldest union,you were established during the apartheid years and your role was highly political in the protection of the rights of certain workers against the rights of a majority when those rights were taken away, politically. I believe as many others do, that the trade union can never be described as apolitical when most of their programmes and actions are very political.Hence in explaining this contradiction, can you therefore in the ”public” interest gives us a basis for yr contradiction. Also,try these antics…

      July 11, 2013 at 12:46 pm
    2. bewilderbeast #

      What a LAUGHABLE comment, @tofolux!! A newspaper asks for information on our tax money being spent and you spout drivel like “in whose interest are you acting?” That’s a PATHETIC question! MY money is being spent and someone wants to know what is was spent on: What the hell can be wrong with a simple request like that?
      Methinks you should come clean and sign yourself @luthuli house

      July 11, 2013 at 5:15 pm
    3. michael #

      The corruption and theft has reached such proportions in government and the civil service that obfuscation and with holding of information is the next logical step hence the problem of getting information in the public domain.

      July 12, 2013 at 7:03 am
    4. “a fast-calcifying culture of secrecy in our public bodies.”
      I’m not sure how you can leap to this ludicrous conclusion when we all democracies on the planet have had the equivalent of our recent Protection of State Information Bill that has been delayed for many years because of a minority who do not care about national security and our responsibility as part of a chain of international security laws.

      In fact, SA has become the most transparent government in its history! However, our problem are the “bloody agents” who hide behind these laws and abuse our judiciary for political gain in the interests of the minority, while endangering our national security in the process! This shameful practice is their only recourse since they have no mandate from our majority.

      July 12, 2013 at 9:19 am
    5. Matthew Smith #

      While I agree that democratic governments have laws in place to protect their national security, and that these laws are often used/abused to protect the employees of the government as they use their power for personal gain – I think the role of the newpapers and media outlets within these countries is to expose information that we would otherwise not have access to. Civil society keeps government and politicians in check.

      I remember PW Botha wagging his finger at all the citizens, and preaching ‘national security’ pre 1994. I remember the banning of newspapers and the stranglehold on the media under the premise of ‘protecting our national interest’. To claim that access to information is a conspiracy of a ‘minority’ – or ‘bloody agents’ doesn’t make any sense in a political or historical context – as this is exactly why we have the constitution. To protect the majority (the citizens) against the minority (the politicians).

      People are not born to serve the state. The state is created to serve the people. We pay the state tax to carry out their duties. We buy newspapers to find out when they waste our money (not theirs) on their own greed. It’s got nothing to do with national security.

      July 12, 2013 at 1:19 pm
    6. Tofolux #

      @wildebeest, civil society has a particular mandate and they have obvious responsibilities. So before you spew, can I ask if media should be regarded to be in the same class as civil society? (wow) I await your answer.

      July 15, 2013 at 7:58 am

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