News that the government’s own Nkandla Report has been classified as “Top Secret” confirms the fears that the Protection of State Information Bill will be abused to protect President Jacob Zuma and his Cabinet against exposure for corruption and maladministration. But even in terms of the existing legal rules, the classification of the Nkandla Report is legally indefensible and done in terms of a draconian and clearly unconstitutional piece of Apartheid-era legislation.
There must be very few South Africans who believe in their heart of hearts that it was morally justifiable to spend more than R200 million of public funds to upgrade the private residence of President Jacob Zuma. This while the president has three official residences where he can receive foreign guests and where he would be able to hide in the various bunkers underneath these residences if a toyi-toyi revolution ever engulfed his presidency.
President Jacob Zuma, who usually claims to be part of a leadership collective, refuses to take collective responsibility for this corrupt spending of state funds, passing the buck to hapless cabinet ministers and officials instead. President Zuma is only collectively responsible when he has nothing to hide, it seems. And now his Minister of State Security has classified the Nkandla Report as “Top Secret” in terms of the “Minimum Information Security Standards” (MISS), a document without any legal standing, which was adopted by the Cabinet in 1996.
This document was seemingly drafted to give effect to the provisions of the Protection of Information Act of 1982, which was passed by the PW Botha regime at the height of Apartheid when his regime became increasingly paranoid about “national security” and the secret service started playing an ever-increasing shadowy role in ruling the country and turning it into a national security state.
The MISS document allows information to be classified as “Top Secret” if the information contained in it “can be used by malicious/opposing/hostile elements to neutralise the objectives and functions of institutions and/or state”. As the MISS document explains, this means information can be classified as “Top Secret”:
“when the compromise of information results in: the functions of a state and/or institution being brought to a halt by disciplinary measures, sanctions, boycotts or mass action; the severing of relations between states; and a declaration of war.”
Unless the Minister of State Security believes that South African voters will be so outraged by the content of the Nkandla Report that they will rise up against the government and try to overthrow it if they find out what is in the Report, it is clear that (even in terms of the MISS document itself) the Nkandla Report was wrongly classified as “Top Secret”. It was obviously so wrongly classified in order to hide corruption and the manner in which the president was enriched by the upgrading of his private home.
Surely, no one believes making the Report public will lead to a declaration of war, to sanctions or boycotts or the severing of relations between South Africa and a foreign state? This means the Minister of State Security has shamelessly abused his (misconstrued) powers to protect the president and the government he leads from the embarrassing details in the Nkandla Report.
But the classification may, in fact, be meaningless and anyone who gains access to the document may very well be able to publish its content without worrying too much that he or she is breaking the law. This is because a cabinet document cannot create criminal offences. Only a law, duly passed by Parliament, can create criminal offences. In a democracy the Cabinet cannot issue decrees that criminalise the behaviour of its citizens – that is only possible in autocratic states.
It is true that the draconian Apartheid-era Protection of Information Act is still on the statute books until such time as the Secrecy Bill comes into force. It is also true that this Act criminalises leaking of information to a “foreign State” or “hostile organisation” made at a prohibited place (like a military installation). It is also true that this Act prohibits anyone from receiving information relating to “the defence of the Republic, any military matter, any security matter or the prevention or combating of terrorism”.
A Security matter is defined in relation to various pieces of legislation, but the National Key Points Act is not mentioned in the legislation at all. This means that a document on the spending of more than R200 million of public funds on the upgrade of a private residence declared a National Key Point probably does not fall within the scope of this definition of a “security matter”. Given the fact that our courts will interpret such sweeping and draconian legislation as narrowly as possible, I cannot see it finding the Nkandla Report to fall within the definition of a “security matter” for the purposes of this Act.
If all Key Points fell within the ambit of what constituted “security matters”, almost all reporting on Nkandla so far would have been in contravention of the Protection of Information Act and most of us would have been prosecuted for breaching this old Apartheid law. As no one has been prosecuted, this must mean that even the spies do not believe that the Nkandla Report is covered by this section of the old Apartheid-era law.
In any case, it is clear that a law that criminalises possession of information but leaves it to the cabinet to draft guidelines on the classification of this information would never pass constitutional muster. This is because such a law would delegate plenary law making powers (in fact, the power to create criminal offences) to the Cabinet – something that is in direct conflict with the separation of powers doctrine and therefore clearly in breach of the Constitution.
This means that in as far as MISS purports to prohibit the sharing of information classified as secret or top secret, this document is clearly unconstitutional. Anyone can leak any document classified as “Top Secret” because there is actually no binding law (passed by Parliament) that sets out which documents may be classified as “Top Secret”. The MISS therefore does not create any criminal sanctions for the possession or distribution of so called “Top Secret” documents.
But wait, section 4 of the Protection of Information Act further prohibits any person from possessing any document “which has been entrusted in confidence to him by any person holding office under the government”. This means that a person who receives any classified document or any other confidential document from any person in government (no matter how corruptly classified or whether it was classified in terms of the MISS document and no matter whether there is any reason for it to be confidential) commits a criminal offence.
This prohibition is extremely broad and far-reaching and clearly infringes on the right to freedom of expression and the right to access to information enshrined in our Constitution. A further subsection states that a person who receives such information is liable for a prison sentence of up to 10 years. This means that if a government official provides me with a copy of a letter requesting the hiring of a tent for a social function and does so “in confidence” I am committing a criminal offence and can be sent to prison for 10 years.
In other words, this is a truly draconian provision in a truly draconian law. The fact that it is still on the books 19 years after the demise of the draconian Apartheid state, serves as a serious indictment of our present government and its willingness to use evil Apartheid laws to hide corruption and maladministration.
The fact that it is being invoked to protect President Zuma from exposure because he allowed the state to spend more than R200 million to upgrade his private home is just plain tacky.
In any case, it must be clear that because many of the sections in this draconian Apartheid-era piece of legislation is overbroad, it would never pass constitutional muster under the limitation clause and is therefore unconstitutional – as sure as the sun rises in the East and sets in the West.
Given the fact that the classification of the Nkandla Report cannot be backed up by legitimate criminal sanction and is based on unconstitutional Apartheid-era legislation, I will not be surprised if the Report is leaked to the media and published by somebody in the media. If I were a potential leaker I would wait until about two weeks before the next election until I put this Report in the public domain to ensure maximum embarrassment to those who are abusing this draconian law to avoid accountability. If I were the Minister of State Security I would rather declassify the document immediately and publish it in order to prevent severe embarrassment to President Zuma and his government shortly before the election.
Just some friendly advice. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.