r2k secrecy report 2014

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    State of the

    Nation Report2014

    trends, patterns and problems in secrecy

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    Mapping SAs (growing?) climate of secrecy20 years into South Africas democracy, the right to know faces apparent

    threats

    The right to know to access and share informa-tion, to organise, protest and speak out is thefoundation of a just society. Information rightswere a driving principle in the struggle againstapartheid, and at the centre of the democraticgains achieved in the 1990s.

    Twenty years into South Africas democracy,these gains appear to be facing greater limits.

    Climate of secrecyAt the heart of this is an emerging trend towardssecurity-statist approaches to governance.1 Anexpansive national security mentality encroach-es on democratic principles by stiling debate,undermining accountability and protecting thepowerful from scrutiny.

    The best-known embodiment of this security-statist mentality is the Protection of State Infor-mation Bill (the Secrecy Bill), which sits on Presi-dent Zumas desk, awaiting signature. Few lawshave so focused the public mind on the problemof secrecy in our society and what appears to be aresurgence of the securocrats.

    But the Bill may merely be a symptom of abroader climate of secrecy and securitisation:

    The use of secrecy to shield politicalactors, in particular President Zuma, from

    embarrassment and accountability;Increasing limitations on protest, with anextraordinary spike in police violence andgrowing signs of criminalisation of protest;Apparent increase in the use of state-securitypolicies such as the National Key Points Act;Lack of democratic oversight of surveillancetools which are vulnerable to abuse.

    Ordinary people, ordinary secretsSecrecy is not only about the political machina-tions of major institutions.

    At the heart of possibly every grassroots strug-gle for social, economic or environmental justice,there is a need for information. This is often basic

    information about bread-and-butter issues, whichpeople need in order to exercise control over theirown lives. Here we see worrying signs of the ob-stacles to accessing information:

    Access to information mechanisms arefailing;

    There is too little proactive release ofinformation;The transparency obligations of the private

    sector, particularly in industries with aserious environmental impact, are largelyoverlooked.

    All of these developments undermine democracy.It is a given that secrecy is sometimes necessaryto protect human life or a persons legitimateclaim to privacy. But secrecy is easily misused,

    and when this happens, it becomes a tool to pro-tect the powerful.

    This reports indings highlight the need for

    greater transparency so that the public can moni-tor the use of state secrecy, as well as the need fora greater commitment to transparency both fromthe state and the private sector. These conditionshave made it very dificult to even research thisshort report.

    But our indings also underscore the need for

    continued, uniied action to resist a growing cul-ture of secrecy and authoritarianism. The recentregeneration of information activism in South Af-

    rica must continue: South Africans must continueto challenge the increasing power and inluenceof the countrys securocrats in our politics and inour daily lives.

    Right2Know Campaign, September 2014

    2K Secret State of the Nation 2014

    This report aims to give a snapshot of key trends regardingsecrecy in law and practice. By its nature, secrecy is dificult

    to measure and the data provided here is pulled together from

    many different oficial and unoficial sources. Greater trans-

    parency from the relevant bodies, and more detailed data-

    sets, would improve efforts to measure the state of secrecy.

    2

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    South Africas freedom-of-info law, the Promotionof Access to Information Act (PAIA), is a powerfultool on paper, allowing anyone to request recordsfrom a public body (or in some cases, a privatebody) and get a response within 30 days. But inpractice, PAIA often proves to be a frustration that

    is symptomatic of resistance to openness from in-formation holders.2

    The PAIA Civil Society Network is a cluster oforganisations that make frequent use of PAIA andare striving to ensure better PAIA compliance.

    In the months following the last R2K Secret

    State of the Nation Report, the PAIA CSN pub-lished a survey of information requests submittedin 2012/13, which showed shockingly low com-pliance with PAIA. In over 250 requests submit-ted between August 2012 and July 2013:

    Only 16% of requests resulted in a full re-lease of information. This igure is down

    from 22% in 2011, and 35% in 2009;3

    Many requests were met with silence: 54%of initial requests, and 62% of requests that

    were under internal appeal, did not get a

    response in the 30 days required by law.

    In the case of the private sector, the use of PAIAto hold companies accountable is still in its earlystages. The PAIA CSN only recorded 22 requeststo private bodies in the last reporting period. Ofthose, six were refused, and only two resulted ininformation being released (the balance were stillpending at the time of reporting). This suggestseven lower compliance in the private sector.

    Though this is only a small sample, drawing onthe experiences of a few key organisations whoform the PAIA CSN, it relects a general frustra-tion expressed among civic organisations that thetools of openness and transparency are good on

    paper but fail in practice.In 2013, the Protection of Personal Informa-

    tion Act (POPI) amended PAIA to make provisionfor an Information Regulator, which will act as anombud with legal powers to force compliance withinformation requests. Though the ofice of the In-formation Regulator has not yet been established,it is hoped that this will strengthen transparency.

    Open Data: set the info free!A key problem is that there is very little proactiverelease of information. Often civic organisationsand community groups are looking for informa-

    tion that should already be available online and inevery municipal ofice. Frequently cited examplesinclude:4

    Housing allocation plansLocal government Integrated DevelopmentPlans (IDPs)Service Level Agreements between localgovernment and private companies con-tracted to deliver public services

    Licenses of mining operations and environ- mental impact reportsAll too often, this information is dificult to get

    hold of, or presented in formats that are dificultto work with.

    In the last year weve seen encouraging devel-opments in civil society, and certain parts of gov-ernment, advocating for an open data approach:encouraging the proactive release of as much in-formation as possible, in formats that are easy toaccess, use and adapt. In other words: to democra-

    tise information.These developments are still in their early stag-

    es, limited to a few municipalities and public bod-ies such as the IEC and StatsSA. However, there ishuge potential to be unlocked.

    Access to info mechanisms are failing

    R2K Secret State of the Nation 2014

    Civil society orgs are experiencing an all-time low when it comes to PAIA

    16%PAIA requests by civil society orgs

    that led to full release in 2012/13

    PAIA requests by civil society orgs

    that led to full release, 2010/11

    PAIA requests by civil society orgs

    that led to full release, 2008/9

    3

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    0

    2

    4

    6

    8

    10

    12

    2005 2008 2009 2010 2011 2012 2013 2014200720062004

    3

    1 1

    2

    3

    10

    5*

    11

    7

    1111

    37*

    Protest is a fundamental right used by commu-

    nities across South Africa to exercise freedom ofexpression and highlight issues of social justice.The state of protest can therefore be thought

    of as a litmus test for freedom of expression, and

    the signs are worrying.5 As the rate of communityprotests around the country appears to be rising,

    police brutality has increased sharply suggest-ing that freedom of assembly is under threat.

    Protest does appear to be on the rise in SouthAfrica. However, for a range of reasons there arefew statistics that quantify that increase reliably.

    SAPS appears to over-report protests6 (report-ing all crowd management incidents as protests,though this igure could includes church fairs andfun runs).

    One important indicator, however, is the dra-

    matic increase in incidents of violence against

    protestors.

    7

    For example, in 2014 so far, sevenpeople have been killed by police during protests.This is compared to three in the whole of 2004.It is dificult to reliably trace patterns from such

    small numbers, but there has been a general up-ward trend over the past ten years. There are like-ly many factors at play, but increased police mili-tarisation has deinitely led to more aggressiveapproaches to public order policing includingthe use of live ammunition.8

    Statistics released in 2011 by the Independent

    Police Investigative Directorate show a similartrend, with a general increase in overall casesof brutality in crowd-control situations (seegraphs). Each case represents a complaint thatneeds to be investigated, though a case may rep-

    The right to protest under attack?Police militarisation and the criminalisation of protest is driving repression

    Protesters killed by police in SAAs per UJ Social Change Research Unit protest database

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    resent more than one person (for example, IPIDwould count Marikana as one case).

    Of 204 complaints related to public-orderpolicing between 2002-2011, only one resultedin a conviction. Seventy-ive cases were closedas Unsubstantiated because a perpetrator couldnot be identiied.9

    In July 2014, the new Minister of Police NathiNhleko announced an intention to demilitarisepublic-order policing. It remains to be seen whateect this will have on the right to protest, espe-cially as the Ministry has proposed to use moreintelligence-led approaches to policing protests,which suggests greater use of surveillance.10

    WHAT WE DONT KNOWThere is no consistent annual reporting

    of instances of police violence againstprotesters.IPID s annual statistics do not provide abreakdown of protest-related incidents.

    But arent protests becomingmore violent?

    While media reports ixate on violent servicedelivery protests, recent research suggeststhat the majority of protests are non-violent but that there is increasing hostility towards

    protestors from municipalities and police.This is partly because non-disruptive

    protests are less likely to be reported in themedia, and partly because oficial statistics

    on protest are unreliable. In a study of protestpatterns in 12 municipalities, Professor JaneDuncan inds that media reports greatly exag-gerate the incidence of protestor violence.However, there does appear to be an emergingpattern of protests being banned or declared

    illegal arbitrarily, forcing communities toprotest without legal protection.11When this happens, police may arrest or

    disperse protestors, forcefully which makespolice violence more likely.

    1

    10

    20

    30

    40

    2 2 2

    4

    44

    7

    24

    1

    2005 2008 2009 2010 20112007200620042002 2003

    3

    6

    9

    12

    15

    1

    4

    2

    3

    2

    9 9

    5

    15

    5

    2005 2008 2009 2010 20112007200620042002 2003

    Police violence in protestIPID cases of assault by police (grievance bodily harm) in crowd control, 2002-2011

    IPID cases of attempted murder by police in crowd control, 2002-2011

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    In the last year, NSA whistleblower EdwardSnowden sparked a global debate about privacyand state abuses of surveillance. But locally, very

    little information is available on the surveillancesystem, although some abuses have become pub-lic such as the attempted monitoring of journal-ists Mzilikazi wa Afrika and Stephan Hofstatter in

    2010.12

    RICA requires a judges warrant to monitorcommunications, and Parliaments intelligence

    committee is meant to release public oversight re-ports, but until April 2014 it had not released anyfor three years. The information has now been re-leased, and though it lacks detail, it appeared that

    the number of authorisations to intercept userscommunications more than doubled between2008 and 2011 (the increase is roughly 170%)before dropping o dramatically.

    However, these statistics do not give us a clear

    picture of the use of surveillance.13 They onlymeasure how often the RICA judge issues a war-rant to intercept someones communications. So

    the drop is not necessarily a good thing: it mayindicate less capacity to conduct surveillance aspart of a legitimate law-enforcement investigation(for example, targeting organised crime); worse,

    it may mean that some interception is happening

    Surveillance secrecy undermines oversightof RICA and the right to privacy

    Surveillance ratesNumber of warrants authorised by RICA judge each year

    * The JSCI RICA reports covered inconsistent time periods in 2008/09

    and 2010/11. The igures presented for those periods represent a 12-

    month extrapolation based on average monthly igures

    2008/09* 2009/10 2010/11* 2011/12 2012/13

    SSA 84* 93 127* 120 96

    SAPS 107* 325 436* 141 48

    NPA 15* 1 0* 0 0

    SANDF 0*

    0 1*

    0 0

    Total 206* 418 564* 261 144

    Approx annual rate of RICA warrants issued

    RICAis fundamentally lawed, but there simply isnt enough information about

    its implementation to detect or quantify abuses

    100

    200

    300

    400

    500

    2012-132011-122010-112009-102008-09

    TOTAL

    South African Police Service

    State Security Agency (SASS/NIA)

    National Prosecuting Authority

    * *

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    without the RICA judges authorisation.The facility that actually listens in to peoples

    communications reported to Parliaments JSCI in2010 that it had made about three million inter-

    ceptions over three years, during which time only882 RICA warrants were authorised.14 So eachwarrant may represent thousands of intercep-tions, or else surveillance is happening without a

    warrant.

    The Matthews Commission, a ministerial in-quiry that looked into abuses in the intelligencesector in the 2000s, did ind that security struc-tures were engaging in a wide range of surveil-lance activity that bypassed the RICA process and

    the need for a judges permission entirely. TheMatthews Commission report was completed in2008, but has been buried on a technicality, andif there has been any attempt to address the Com-

    missions indings, it has not come to light.15

    There is just not enough transparency in thesystem and too few safeguards to protect againstabuses of surveillance. South Africa needs to kick-

    start a national dialogue about surveillance, RICA,and the right to privacy.

    WHAT WE DONT KNOWWe simply dont have enough informationabout how often the authorities intercept

    civilians communications directly, and why.The information we do get is out of date, andonly relates to the number of warrants issued,not the number of interceptions that actuallyhappenThere is no information about how manyRICA interceptions lead to arrests or convic-

    tions, which would at least show RICAs eec-tiveness in ighting crime.

    Meta-data spying uncheckedThese statistics also do not measure the collec-tion of users metadata. This could include cap-

    turing someones location, who they are calling ortexting, and when. The UN High Commissioner forHuman Rights has argued that unchecked meta-data collection seriously violates privacy.16

    A warrant to collect metadata can be obtainedfrom any magistrate or High Court judge, and itappears that there is no centralised oversight oroficial statistics.

    Nine months ago, Privacy International (PI)put a spotlight on South African surveillancecorporation VASTech, whose mass surveillancetechnology was allegedly used by Libyas

    repressive military regime to spy on millions ofcitizens.17

    Though VASTech was already a thrivingprivate company, PI uncovered documents thatshowed the Department of Trade and Industry

    had provided nearly R4-million in funding toVASTech to develop its surveillance technologybetween 2005 and 2010.

    Did the Department of Trade & Industry know

    it was using public money to help develop masssurveillance technology that was exported to amilitary regime with a history of human rights

    abuses? DTI responses to media reports suggestthat it did.

    Spotlight on SAs private surveillance industry

    Challenges with complianceRICA judge Yvonne Mokgoros latest report,from July 2013, notes several challenges,including media reports of oficials:

    Getting information in less than 36hours, without the judges knowledge;Getting cell phone billing andownership records through CrimeIntelligence, without the judgesknowledge;

    Getting user information for personalreasons;Failing to give fact-based justiicationsfor needing a warrant;Adopting a cut and paste approachin afidavits motivating for a RICAwarrant;

    The judge reported hosting workshops withlaw enforcement oficials to demystify theprocess of lawful interception, and said it

    had resulted in better applications.

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    50

    100

    150

    200

    250

    2006/07 2007/08 2008/09 2009/10 2010/11 2011/12 2012/13 2013/14

    National Key Points

    Strategic Installations

    118

    145

    156 158

    175

    182

    197

    180

    136

    207 207 207

    228 227

    248 248

    The apartheid-era National Key Points Act allowsany place or building to be secretly declared aNational Key Point for national security reasons.Once a place has been declared a National KeyPoint, it must meet minimum levels of security,and revealing information about these security

    measures is a crime.The Minister of Police declares these sites in

    secret, and the government has refused to reveala list of all the National Key Points in South Africa.We do know that it includes various governmentbuildings, oil reineries, airports, SABC ofices,and the presidents personal home in Nkandla.

    Why is the secrecy a problem?The law has drawn a lot of criticism for beingoverbroad and unconstitutional, but governmenthas tended to go beyond even the prescripts of thelaw. For instance, even though the secrecy provi-sions are meant to apply mainly to security fea-tures, the law has been invoked to withold manyother kinds of information.

    The National Key Points Act has also been usedto restrict protests. It is not provided for in theAct, but the police and many municipalities have

    eectively banned protests at most National Key

    Increase in National Key Points shows

    irrational security policies in action

    Even under review, the law has been invoked and abused to block informationand undermine protest

    Use of national-security policiesNumber of National Key Points and Strategic Installations growing

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    Points though a police advisory committee hasruled that this is unlawful.18

    NKPs to be reviewed in secretAs public pressure mounted, the Ministry of Po-

    lice last year promised a review of the NationalKey Points Act in Parliament, and set up an advi-sory panel to evaluate all National Key Points andStrategic Installations.

    While the results of this review have yet to betabled in Parliament, it remains to be seen if anamendment law will produce serious progressive

    changes, or simply reafirm the general thrust ofthe existing Act. Importantly, SAPS has indicatedthat it intends for the list of National Key Points to

    remain secret, even while Parlaiment amends theAct, which makes it very dificult to evaluate theimplementation of the existing Act.

    The truth will outNearly two years ago, R2K and the South AfricanHistory Archive (SAHA) used PAIA to ask SAPS to

    release a public list of all National Key Points. Weviewed this as a irst step in challenging the creep

    of unjustiied national security secrecy in ourpolitics and public life. SAPS refused, and the mat-ter is now headed for court in November 2014.

    NKP abuses in practice

    January 2013:Department of Public Works

    cites the NKPA to justify secrecy aroundR215-million upgrades to the Presidentspersonal home.19

    February 2013:Numsa is refused a permitto hold an overnight protest against electric-ity taris at the headquarters of Nersa, theelectricity regulator its headquarters are aNKP.20

    September 2013:Members of SAPS tell R2Korganisers in Gauteng that Luthuli House hasbeen declared a temporary National Key

    Point, though the police ministry issues astatement that this is false.21

    November 2013: Former Minister of StateSecurity Siyabonga Cwele states in a pressconference that publishing photographs ofthe upgrades at Nkandla is illegal because itis a National Key Point. GCIS later says thesecomments were misunderstood.22

    January 2014: SABC chairperson Zandile

    Tshabalala reportedly cited the NKPA in issu-ing a warning to sta, allegedly stating thatas employees at a NKP they should not leakinformation about internal strife and could

    be subject to surveillance.23

    June 2014: Tshwane metro police cite theNKPA in attempting to dissuade R2K organis-ers from picketing the Seriti Commission onthe Arms Deal, stating that the Commission

    venue is a NKP. The claim is never committedin writing.24

    WHAT WE DONT KNOWThe list of National Key Points, and the justii-cations for declaring each site a National KeyPoint, is oficially secret.

    There is almost no public information aboutwhat Strategic Installations are, let alonewhich sites have been declared StrategicInstallations. It is not clear that StrategicInstallations are regulated by any law at all.

    Whats a Strategic Installation?Little is known about Strategic Installationsexcept that they are sites that are givensimilar protections and functions to NKPs.

    The same SAPS budgetary documentsthat disclose the number of NKPs (see

    graph) also disclose the number of StrategicInstallations. When R2K wrote to SAPS forclarity, oficials admitted that any provincialor national government site can be a StrategicInstallation, but they are not declared assuch and there is no Act that prescribes this.

    Given the abuses we have seen with NKPs,a separate set of sites with vague national-security protections is worrying - anothersecret policy not subject to public oversight.

    When the Gupta family sparked an outcry

    by jetting into Waterkloof airbase in April2013, former justice minister Je Radebestated that Waterkloof is a Strategic Instal-lation, not an NKP. Trespassing on a militarybase carries a penalty of up to 25 years jail interms of the Defence Act, though none of theGuptas were charged.

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    Though analysts have taken note of this emergingtrend in the past,25the biggest political scandals ofthe past year have been marked by a tendency inthe countrys security structures to act as politi-cal bodyguards for the President and his allies.

    During the Public Protectors investigation ofNkandla, or the inquiry into the Guptas landingat Waterkloof airbase, ministers of the securitycluster began to take on an ever more public rolein shielding the President from political pressure.Most recently, after chaos erupted in Parliament

    during President Zumas parliamentary ques-tions sessions, the security cluster assembled toannounce that certain measures would be putin place to ensure the authority of the state shallnot be undermined, neither will the authority ofParliament be undermined.

    The encroachment of the security cluster intodemocratic political life should be seen as deeplytroubling. But more broadly, how have secrecyand security-statist tendencies manifested in

    public life?

    Nkandla, the house that secrets builtThe Problem: The state abused secrecy laws andlied about national security to shield the Presidentand government from embarrassment

    The Story: In 2009, when newspapers irst re-ported upgrades to the Nkandla homestead, es-timated then at R65-million, government denied

    any knowledge of the project and claimed no pub-lic money was being spent.

    In 2012, when it emerged that over R200-mil-lion was spent, investigative journalists at amaB-hungane used PAIA to ask for the procurementdocuments that would show where funds werecoming from and how they were being spent. TheDepartment of Public Works refused, citing apart-heid-era secrecy laws: the National Key Points Actof 1980, the Protection of Information Act of 1982and the extra-legal cabinet policy on Minimum In-

    formation Security Standards.DPW Minister Thulas Nxesi argued that all

    documents about Nkandla spending were so fullof security-sensitive information that none couldbe released. But over the court of AmaBhunganes

    legal challenge to this decision, the DPW eventu-ally backed down, releasing 12 000 documentsthat revealed massive abuse of public funds. Notone of them aected national security in any way.

    In other words, the DG and Minister had lied un-der oath about the need for secrecy.26

    The same thing happened when Nxesi classi-ied the report of the Ministerial Task Team inves-tigation into Nkandla as Top Secret. When it wasinally released, under separate legal challengesfrom the Democratic Alliance and amaBhungane,

    it did not include any security-sensitive informa-tion. Again, Nxesi had lied.27

    In November 2013, the security cluster minis-

    ters again deployed national security as a cover-up tool, when they irst rushed to court to blockthe release of the Public Protectors report on Nk-andla. They claimed the report contained severalsecurity breaches and top secret documents.28The states case collapsed when the Public Protec-tor pointed out that her ofice relied on the same

    documents given to amaBhungane, which werealready publically available on their website.

    Zumas Spy TapesThe Problem: The Presidents lawyers have spentyears ighting the release of documents that would

    reveal whether or not Zuma should currently facecorruption charges

    The Story: The Spy Tapes are probably the most

    explosive secret in SAs political soap opera. Theyled to the dropping of Jacob Zumas corruption

    charges and paved his way to the presidency, butattempts to get the tapes released have createdturmoil and factionalism in the National Pros-ecuting Authority (NPA) and led to a legal tusslethat has lasted years.

    The Spy Tapes are secret recordings of phonecalls between senior members of the Scorpionsand the NPA, who were then pursuing corruptioncharges against Zuma. The recordings are appar-

    ently a result of another element of the intelli-gence services bugging the phones of senior NPAoficials.

    Though these recordings were probably illegalin themselves, they were leaked to the Zuma legal

    All the Presidents secrets...How President Zuma and his allies have used secrecy and state security as a

    political survival strategy

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    team in 2009, who used the tapes as leverage toget Zumas charges dropped. Excerpts of the tapessuggest that the investigators were consideringthe timingof bringing charges, deciding whetherto bring charges against Zuma before or after thePolokwane conference in 2007. This was used bythe NPA head Mokotedi Mpshe to drop the charg-es altogether, saying that the timing issue was anabuse of process.29

    But the full contents of the Spy Tapes havenever been revealed, and Zumas legal team has

    fought for years in court to prevent their release.In August 2014, Zumas ive-year legal battle ran

    out of steam in the Supreme Court; the SCA or-dered that both the recordings and all relateddocuments be released.30

    Until the spy tapes are made public (along withall supporting documents that lay bare the NPAsreasons for dropping Zumas corruption charge)South Africans will never fully grasp the extentto which intelligence services were subverted for

    political ends, and whether in fact the justiicationoered for dropping Zumas charges was valid.

    Secrets at the Seriti CommissionThe Problem:Commission is withholding or ignor-ing large amounts of information, undermining thepublics right to the truth

    The Story: The Seriti Commision has been taskedwith investigating allegations of corruption in the

    1999 Arms Deal, which paint a picture of wide-spread corruption within the highest echelons of

    the South African state and the international armsindustry.

    President Zuma is among those who have beenimplicated in those allegations, as he faced a raftof charges relating to corruption after his inancialadvisor Schabir Shaik was convicted for solicitinga bribe on Zumas behalf. The charges were con-troversially withdrawn shortly before he becamepresident in 2009. It was also Zuma who initiated

    the Commission of inquiry in late 2011, preempt-ing a constitutional court challenge.

    But the Commission has come under sustainedcriticism for its approach, and key whistleblowerswithdrew in protest from the Commission.

    In August, three independent witnesses at theCommission (former ANC MP Andrew Feinstein,and researchers Paul Holden and Hennie vanVuuren), announced their decision to withdrawafter struggling for over 18 months to get the

    Commission to release critical documents thatare needed for the inquiry to function and for thepublic to participate meaningfully.31

    These range from minutes of meetings wherethe Arms Deal was hashed out, to evidence col-lected as part of oficial investigations into alleged

    Arms Deal corruption and various governmentreports on the details of the contracts and tender-

    ing process.In other instances, the Commission has ruled

    key evidence to be inadmissible, including a draftcopy of the Auditor-Generals report (used in pre-vious State investigations) and a leaked reportcommissioned by one of the arms companies(Ferrostaal), the contents of which speak directlyto their role in wrongdoing in the South African

    Arms Deal.Most recently the Commission chair, Judge

    Willie Seriti, controversially ruled that witnessesshould only speak to documents and evidencethat they themselves have authored. Eectivelythis means that evidence of corruption wouldonly come to the Commissions attention if it weresubmitted by people who were party to the cor-ruption.

    These combined conditions have created a situ-ation that deeply undermines the publics right to

    know. The Seriti Commission appears to be play-ing into the hands of securocrats and those whohave been implicated in the Deal by blocking ac-cess to information to the public, and apparentlyfailing to engage with this evidence itself.

    The missing Khampepe ReportThe Problem: The Presidency spent millions inlegal fees to keep information out of the publicdomain, despite its importance to public interest

    The Story:This is a secrecy battle inherited fromanother President, but which continues to thepresent day. Twelve years ago, former PresidentMbeki sent two South African continued on pg 12 >

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    In most democracies, it is recognised that the

    public has a right to know who is funding politicalparties. Yet in South Africa political parties arenot required by law to disclose who their privatedonors are.

    Six weeks before the 7 May elections, over 60civil society organisations made an open call tothe 14 biggest political parties calling for them todisclose their sources of private funding. Not one

    of them did.The secret space between politicians and their

    inanciers undermines democracy, allowing cor-porations, wealthy individuals and even foreigngovernments to buy inluence and favours fromthe political elite.

    The public has a right to know who is bankroll-ing the political parties that want their votes, andin most democracies, that information is public.In South Africa, keeping that information secret is

    one thing that seems to unite all major parties.In July, civil society organisation My Vote

    Counts approached the Constitutional Court,

    eectively to force Parliament to make good onits years of promises to ix this problem. MVC isseeking an order that would compel Parliamentto pass a law requiring political parties to declaretheir funding.

    Parliaments broken promisesThe history of party funding reform is littered withbroken promises. In 2005, after civil society took

    the ive biggest parties to court over their refusalto disclose their funders, the High Court ruled thatParliament must introduce a law to regulate pri-vate funding. But over the last ten years, with theexception of a few backbencher MPs, Parliamenthas resisted all eorts to bring in this legislation.

    Just a years worth of scandals:Reports that the Communist Party of Chinamay fund the ANCs political school to thetune of R800-million.32

    Gupta family escapes censure after landing aprivate plane at Waterkloof airbase.34

    Reports that South African born billionaireNathan Kirsh was the donor behind the failedDA/Agang merger. Kirsh controversially hasa large stake in a security company with bigcontracts with the Israeli military.35

    Uruguayan Gaston Savoi, accused of oering a donation to the ANC in exchange for agovernment tender, lost a court battle in

    May to get corruption charges against himdropped.36

    Who funds political parties?20 years of broken promises on party-funding secrecy now coming to a head

    judges (Justices Sisi Khampepe and DikgangMoseneke) to observe the 2002 Zimbabwe

    elections. The report they produced the so-called Khampepe report is now conirmed tohave questioned the fairness and legality of theelection. However, it was never made public. Inother words, the South African government wouldhave endorsed the election of a neighbouringgovernment that it knew to be invalid.

    In 2008, after learning of the reports existence,the M&G newspaper used PAIA to request that it

    be released. The Presidency refused, and the mat-ter went to court. It was only in February 2013,after a long legal battle, that Judge Joseph Taka-lani Raulinga inally ruled that the report shouldbe made public after taking a judicial peek at its

    contents. The Presidency was ordered to releasethe report within 10 days.

    But the report has not been released. Thoughthe President has changed, the ofice of the Presi-dency continues to ight the documents release,appealing the decision at the Supreme Court ofAppeal. For a period the report mysteriously wentmissing from Judge Raulingas chambers (the

    Presidencys legal team claimed this was the onlycopy). The Judge, meanwhile, reportedly claimedthat a state attorney had tried several times to get

    the report from his ofice while he was absent.A copy of the report has since resurfaced and

    the matter will be heard in the Supreme Court ofAppeal later this year.36

    All the Presidents secrets

    continued from pg 11

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    The Protection of State Information Bill (the Se-crecy Bill) now awaits the Presidents signature.Despite over a hundred minor and major tweaksspanning over thirty drafts, the Secrecy Act is stilla threat to the right to know. Though the Presi-

    dent referred the Bill back to Parliament brielyin September 2013, it was literally only to correcttypographical errors, and Parliament re-approvedthe Bill soon after.

    There have been a range of progressive chang-es to the Bill since it was tabled in 2010 (see boxbelow). But many of the underlying problems arestill there:

    An open-ended deinition of national securitywhich encourages over-classiication (for ex-

    ample, including classiication of undeinedeconomic secrets).The Bill makes it a crime not only to leak clas-siied information, but merely to possess it.

    This means that even if the information isalready in the public domain, it would be acrime to have access to it.Although when the Bill is signed into law, onlythe security cluster and cabinet will get se-crecy powers, the Minister of State Securitycan extend this function to any other organ of

    state except municipalities.Classiication decisions do not need to be pub-lic, creating a high risk of over-classiication.

    The Bill retroactively protects all documentsclassiied under the previous legislation, in-cluding apartheid-era records, with no dead-line for declassiication.There is no public interest defence in the law,providing only limited protection for whis-tleblowers. (For example, the law exempts awhistleblower from prosecution if they dis-closed outright criminal conduct, but providesno protection for exposing shady tendering

    practices, improper appointments or lawedpolicy decisions).

    The Bills espionage oences, which crimina-lise receiving state information unlawfully,are so widely drafted that they could punishresearchers, activists, whistleblowers andjournalists who disclose classiied informa-

    tion in the public interest. The penalty in-cludes jail sentences of up to 25 years.

    In sum, the Bill in its current form must bescrapped and redrafted to relect the values ofopenness and transparency that underpin ourConstitution.

    But we know that even without the Secrecy Billin place, there is already overclassiication acrossmany government departments (see 2013 Secret

    State of the Nation report). However, this onlycame to light because of a one-time disclosure by

    government departments to Parliament in 2011.It should be a regular reporting requirement.

    WHAT WE DONT KNOWThe number of documents that get classiiedeach year, by which departments.The number of documents that get declassi-ied each year, by which departments.

    Secrecy Bill: Whats been ixed?

    Scope has been limited mainly to thesecurity cluster. Municipalities areexcluded, though any other state body canopt in;

    Now has limited whistleblowerprotection;Narrower, although still open ended, basisfor classifying information;

    Most commercial information is excludedNo longer overrides PAIA;Replaces the apartheid secrecy law whichis even broader and more vague.

    Flawed Secrecy Bill awaits Zumas signingDespite cosmetic changes, the Bill remains a threat to the right to know - but

    has stalled as the President has neither signed nor referred it to the Con Court

    300days since Parliament sent the airbrushed Secrecy

    Bill back to the President, as of 8 Sept 2014

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    There are perhaps as many right-to-know issuesrelating to the private sector as to government.Yet the principle of commercial conidentialityis often employed to shut the public out of issuesabout which it has a right to know. There are fewsectors where this tendency is more strongly feltthan in the extractives industry.

    Though South Africas environmental lawsrequire companies to disclose certain informa-

    tion to government about their environmentalimpact, getting that information released to thepublic is often a struggle37. Environmental rightsgroups have stressed that companies must be

    able to show the public what environmental com-mitments they have made, and whether they arefulilling those commitments this means publicaccess to both their environmental licenses andcompliance data38.

    Long struggles, small victories

    The past year has seen court judgements in twoimportant cases that tackled secrecy in the extrac-tives industry. Both involve the Vaal Environmen-tal Justice Alliance (VEJA), a coalition of civic bod-ies in communities aected by heavy industry.

    In 2013, fertiliser manufacturer Omnia wasordered to hand over water monitoring datato VEJA. VEJA had requested this informationin early 2012, and Omnia refused, claiming itwas commercially conidential (though theinformation requested had already been giv-

    en to the Department of Water Resources as amatter of course). Omnia had argued in courtthat it will create an unbearable situation ifmembers from civil society arrogate for them-selves the function to become co-regulatorsand co-enforcers of industrys environmen-tal responsibilities.39

    In September 2013, the High Court orderedArcelorMittal, Africas biggest steel producer,to hand over a range of information about en-vironmental rehabilitation. VEJA argued thatcommunities near ArcelorMittal sites neededthis information to better understand the ex-tent of the companys impact on the environ-ment and make it more accountable to the

    communities they aect. ArcelorMittal is ap-pealing the matter at the Supreme Court ofAppeal.40

    However, even these small victories are the resultof years of legal action. Too often, communitiesor civic organisations get drawn into long andexhausting battles for basic information whichwould help to identify wrongdoing and allow

    citizens to begin to enforce their rights; it can beyears before the information is inally released,

    and only then can the community begin the taskof holding the company to account. Even whereattempts to access information are successful, bythe time the information arrives in the hands ofthe community it may be years out of date.

    When it comes to environmental safety andpollution risks, the delayed accountability createdby such secrecy may literally cost lives.

    Civil society advocates list a range of informa-

    tion sets that should be more proactively avail-able to help civil society and communities holdthe private sector to account. These include envi-ronmental licenses governing atmospheric emis-sions or water use, the internal reports producedto track compliance with those licenses, and theactual mining rights issued by the Department ofMineral Resources.41

    No information, no consultationMining Aected Communities United in Action (a

    coalition of 50 civic organisations in communi-ties aected by mining) has also highlighted theobstacles to accessing mining companies Social

    & Labour Plans a legally required documentoutlining companies commitments to invest inthe community, but which the community oftenstruggles to access.42

    Even using PAIA for this document has its ob-stacles. For example, in 2013 Platreef initiallyrefused a request by civic leaders in Mokopanecommunity to get access to the Social & LabourPlan for their area, essentially arguing that it wasa private arrangement between the company andthe state. Platreef subsequently backed down andhanded over the SLP.43

    Industry, secrecy, and the communitys

    right to know

    Debates about transparency tend to focus on government, but what about the

    private sector? Within polluting industries, secrecy may literally cost lives

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    Environmental rights groups have oftencomplained of instances where public bodiesappear to be acting in the interests of corporate

    polluters instead of aected communities.However, this year we see an information-

    access battle looming between a privatecompany and a public body which has clearly

    sided with the communitys right to know.The private company is Northern Coal, and

    the public body is the Inkomati Catchment Man-agement Agency, which oversees water catch-ment aairs in Mpumalanga. The communityis Silobela, a small township on the outskirts ofCarolina, Mpumalanga.

    After acid mine drainage left their communitywithout drinking water for about eight months,last year Silobela residents and attorneys at

    Lawyers for Human Rights went to InkomatiCMA for information about the contaminated

    water seepage in their area. Some of theinformation they needed had been handed

    to Inkomati by private companies, including

    Northern Coal, which operates in the area.Inkomati acknowledged that it was

    information that should be released to thepublic, and in July 2013 Inkomati notiiedNorthern Coal that it intended to hand theinformation over to LHR and Silobela civicleaders.

    But Northern Coal has gone to court to inter-dict the release arguing in their papers that

    release of the information could damage theirreputation and hurt their commercial interests.

    Northern Coal want to prevent Inkomati frommaking the information public.44

    Inkomati, LHR and Silobela residents arenow opposing the interdict application. A hear-ing has not yet been scheduled.

    Inkomati: How one government agency sided with the

    communitys right to know

    D McKinley, Secrecy & power in South Africa, in1. New South African Re-view 4, Wits University Press, 2014M Dimba, Freedom of information and national security in South Af-2.rica, in South Arica 1994-2013: a twenty-year review, HSRC Press, 2014PAIA Civil Society Network Shadow Report, 20133.D McKinley, The Right to Know, the Right to Live: Open Data in South4.Africa, Open Democracy Advice Centre, 2012See for example M Clark, An anatomy of dissent and oppression: the5.criminal justice system and the 2011 Thembelihle protest, Socio-Eco-nomic Rights Institute, 2014J Duncan, The Politics of Counting Protests, M&G, 16 Apr 20146.P Alexander, C Runciman and T Ngwane, Media Brieing: Community7.Protests 2004 2013: Some Research Findings, University of Johannes-burg Social Change Research Unit, Feb 2014Ipid presentation to Parliament, 20128.G Newham, Exploring police performance and police brutality in South9.Africa, in South Africa 1994-2013: a twenty-year review, HSRC Press,2014Hon N Nhleko, Police Ministry Budget Vote speech, 21 Jul 201410.

    J Duncan, Peoples Protest is being criminalised, M&G, 1 May 201411.J Duncan, Communications surveillance in South Africa: The case of the12.Sunday Times newspaper, in Communications Surveillance in the Digi-tal Age, Global Information Society Watch 2014M Hunter, Rica in South Africa: How big is Big Brother?, GroundUp,13.13 Jun 2014Annual Report of Parliaments Joint Standing Committee on Intelli-14.gence, 2010Ministerial Review Commission on Intelligence, Intelligence in a con-15.stitutional democracy, inal report to the Minister for Intelligence Ser-vices, 2008. See www.r2k.org.za/matthews-commissionUnited Nations High Commissioner for Human Rights, Right to privacy16.in the digital age, 2014Privacy International, South African Government still funding VASTech,17.knows previous inancing was for mass surveillance, 30 Jan 2014SAPS statement, Minister Mthethwa announces a review process of the18.National Key Points Act, 8 Nov 2013

    IOL, Zumas Nkandla declared a national key point, 27 Jan 201319.

    Numsa statement, Numsa goes to court over right to picket on 27-2820.February outside ofices of Nersa, 24 Feb 2013EWN, Luthuli House is not a national key point, 11 September 201321.TimesLive, Media misunderstood Nkandla directive: GCIS, 22 Nov22.2013M&G, Big Brother is watching the SABC, 10 Apr 201423.R2K statement, Tshwane Metro Police have blocked R2K Picket at24.Arms Deal, 11 Jun 2013J Duncan, Jacob Zumas National Security Complex, SACSIS, 1 Dec25.2010IOL, Public Works DG cant be trusted: court, 6 Nov 201326.M&G, Nkandla: Why did Nxesi lie?, 21 Feb 201427.Minister of Police and others v Public Protector, C 59529/2013, North28.Gauteng High CourtM&G, JZs decade of destruction, 2 Nov 201229.Business Day, Five-year battle over spy tapes dies in half an hour, 1830.Aug 2014K Tyiki, How the Seriti Commission is failing, GroundUp, 18 Jul 201431.City Press, Chinese may fund ANCs political school, 3 Aug 201432.

    Business Day, Do not make workers Guptagate scapegoats, warns33.Cosatu, 15 May 2014Sunday Independent, Exposed: DA-Agang mystery funder, 9 Feb 201434.M&G, Concourt ruling provides certainty for Intaka Case, 21 Mar35.2014M&G, Khampepe report on Zim election miraculously resurfaces, 2336.May 2014Centre for Environmental Rights, Turning on the Floodlights, Mar37.2013Centre for Environmental Rights, Unlocking the Doors, Feb 201338.VEJA v Omnia Holdings Ltd, C 38166/2012, Southern Gauteng High39.CourtVEJA v ArcelorMittal SA Ltd and others, C 39646/2012, Southern Gau-40.teng High CourtInterview with Centre for Environmental Rights, Jul 201441.Interview with MACUA, Jul 201442.Interview with Lawyers for Human Rights, Aug 201443.

    Northern Coal Ltd v ICMA, C 22320/14, Southern Gauteng High Court44.

    References:

    This report was produced by R2Ks secrecy focus groupand edited by Murray Hunter. Special acknowledgements to organisations and individuals whose

    work guided this research: Centre for Environmental Rights, Lawyers for Human Rights, Mining Aected Communities United in Action, My Vote Counts,

    Professor Jane Duncan, South African History Archive, UJ Social Change Research Unit. Get the online references at www.r2k.org.za/secrecy-report-2014

    This report is licensed under Creative Commons Attribution Share-Alike2.5 License.

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    Contact the Right2Know Campaign

    web:www.r2k.org.za

    twitter: @r2kcampaign

    facebook: right2know

    national ofce:

    [email protected]

    021-447-1000

    western cape:[email protected]

    gauteng: [email protected]

    kzn: [email protected]