28 February 2012

Recent government practice confirms that secrecy bill will hamper free flow of information

Two recent developments serve to confirm fears that the secrecy bill, which is making its way ever closer to becoming law, will serve to undermine the free flow of information and reinforce the growing culture of secrecy in government.

The first of these chilling developments involves the attempts to silence Roberta Nation, when she complained about rampant fraud within the State Security Agency (SSA). Nation is an employee of Optimum Medical Scheme (OpMed), which is the in-house program that serves members of the State Security Agency and their beneficiaries. She was formerly in charge of the fraud unit at OpMed, but was moved to a different department after uncovering a series of fraud cases.

After making several complaints to her superiors about fraud within the agency, Nation filed a complaint using the SSA's internal grievance procedure. When these efforts did not garner the attention of the SSA, Nation spoke to a lawyer to help deal with her complaints.

Dennis Dlomo, who is the man behind the design of the controversial secrecy bill, wrote to Nation's lawyer, saying "You are advised that your engagement with her (Nation) on her grievance without the required security clearance may amount to a contravention of, among others, the Protection of Information Act 1982 and the Intelligence Services Act 2002. You are kindly requested to refrain from doing so until you have followed the correct procedures as prescribed by law."

Nation's lawyer, Allison Tilley of the Open Democracy Advice Centre (ODAC), indicated that this behavior is a violation of the constitutionally guaranteed right to a lawyer of your own choosing.

Tilley also pointed out a major problem with this practice in terms of the secrecy bill, saying "With the Bill, the argument from government has been that they will not use classification to cover up wrongdoing. Here is precisely a case of classification being used to prevent a whistle-blower from seeking legal advice. This is what classification is used for, to prevent the disclosure of fraud."

Many other states have declined to use outdated secrecy laws, such as the 1982 Act, which are largely remnants of colonial rule. However, South Africa's government has sought to put it to use in this instance, despite having repeatedly cited the outdated law as being inappropriate. In fact, the government uses the fact that they do not have a current acceptable law on the books as a selling point for the secrecy bill's passage into law.

An additional event that illustrates the current government's distaste for open political dialogue occurred at a recent Johannesburg Metro Council meeting. The Speaker of the Council tried to reprimand two DA councillors after they revealed corruption by ANC councillor Godfrey Nkhasi who sold council land and pocketed R15 000. Nkhasi was fired as a result of his conduct being exposed.

The attempted reprimand of the two DA councillors was based upon their decision to go to the media, as opposed to the speaker, to reveal the corruption. They relied on a council standing rule that explains "A councillor may raise the matter related to the contempt, including a breach of privilege in writing to the speaker."

The two DA members appealed the Speaker's decision to the MEC, who confirmed the Speaker's decision to reprimand the members. When they were asked to stand during a council meeting to be reprimanded, they chose instead to walk out of the meeting. The Speaker received a letter from the councillors' attorney requesting that she do not impose the sanction as the decision of the MEC will be reviewed.

The troubling trend that can be observed through these events is that the current government, from the federal to the municipal level, has been infiltrated by a culture of secrecy. They do not respect the importance of protecting whistleblowers from punishment when the actions they have taken were necessary to expose corruption by public officials. The secrecy bill will better equip the government to cover up incidents of corruption and to punish those who are brave enough to expose it. Without courageous individuals who are willing to speak out against corruption in order to ensure transparent and accountable governance, South Africa's democracy will never reach its full potential.

For more information on this story, please contact the FOIP team at SAHA.