South Africa: Yes, we have trust issues [opinion]

The Big Read: The breadth, meaning and scope of what "the national interest" entails have been in the news of late. The topic comes up when clipping the wings of freedom of expression of the media - a new media tribunal is being discussed - and in the debate raging around the propriety and constitutionality of the draft Protection of Information Bill.

Nobody can really pin down what "the national interest" means. It is a flexible concept, used in various contexts in the legislative and regulatory framework of this country. Its meaning is context specific: sometimes, it means nothing more than whatever is good for the country; at others it takes on a narrower focus. It ought not to be confused with national security, even though it is in the national interest that we have a system that ensures our national security. More important, the national interest should not be confused with the specific interests of any political movement, a particular administration or even the career of politicians and public servants. It is bigger than all of these things and should always be related to the whole of the nation, not just to a sectional interest group.

 

So it is cause for concern that Cecil Burgess, ANC MP and chairman of the parliamentary ad hoc committee busy with public hearings on the Protection of Information Bill, a trained lawyer, saw fit to issue an inappropriate and irrelevant challenge during the hearings. He asked Nic Dawes, editor of The Mail & Guardian, this question: "As they would have said in the days of the struggle: are you with the struggle or are you against the struggle, Sir?"

 

The protection of state information, all issues around national security and the national interest (if it has any place whatsoever in the debate and in the bill) have less than nothing to do with "the struggle".

 

The struggle is today a thing of the past, as the question to Dawes itself implies, and it is best remembered as the policies and programmes of the liberation movements. The struggle was ended by the conclusion of the national accord which led to the adoption of our new constitutional order after its provisions were certified by the Constitutional Court as being consistent with the pre-agreed principles according to which the nation (both those who participated in the struggle and those who resisted it) would live and be organised in the future. A new nation, united in its diversity, is clearly envisaged. The Protection of Information Bill, like all security legislation, has to reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want, and to seek a better life. This is what the constitution expressly requires.

 

Burgess is not alone in his misconception of the situation. This is a product of the "dominant party state" that South Africa has become during its democratic infancy. The lines between party and state become blurred and the interests of each tend to be regarded as equivalent, when clearly they are not. So it comes as no surprise that during the same hearings another ANC MP, Hlengiwe Mgabadeli, chairman of the parliamentary defence committee, argued that the government and its institutions should be trusted to guard the good, and to root out evil, without any help from the press.

 

Another member of the committee, also of the ANC, complained that the good government does is not regarded as newsworthy, whereas that which is negative is afforded coverage in the press.

 

A few years ago, former president Thabo Mbeki told concerned religious leaders to trust him on the matter of police chief Jackie Selebi. He frustrated the prosecution of Selebi and ended the career of his national director of public prosecutions, Vusi Pikoli, protecting a loyal friend who has since been convicted of corruption. Such an experience suggests that there is no basis for trusting politicians. It is not the role of an independent media to trust politicians. Certainly not in a country in which the current president was facing charges of corruption until a secretly taped conversation was illegally leaked to him, thereby affording Pikoli's vulnerable acting successor a false pretext for withdrawing the charges and leaving the way open to the presidency.

 

It is also a matter of public record that about a third of the members of the ANC national executive committee have been criminally convicted or investigated.

 

ANC secretary-general Gwede Mantashe has conceded that the Scorpions were closed down for this very reason.

 

This is not a milieu in which the national interest needs to extend beyond national security when it comes to protecting information. Fortunately, the principles governing national security are clearly defined in section 198 of the Constitution. Any attempt at pushing the provisions of the Protection of Information Bill beyond the requirements of national security is not justified in the national interest.

 

As far as media freedom is concerned, the starting point is the Bill of Rights, which guarantees freedom of expression to all - private individuals and media alike. The notion of self-regulation of the media is a salutary one. There are always questions about the independence of government- appointed media tribunals. The tendency to use them to silence pesky critics, by throwing them in jail in extreme cases, is a situation that does not accord with the ethos of the new South Africa.

 

Thabo Leshilo, Avusa's public editor, has drawn attention to the foundational values of our new order: our ethos of open governance and transparency. To these he could well have added the notion of accountability. If the drafters of the plans for a media tribunal, and those responsible for the final form of the Protection of Information Act, take openness, transparency and accountability into consideration, an outcome that aligns with responsiveness to the needs of the ordinary people (not the party, the politician or even the administration) is much more likely.

 

Paul Hoffman is a founding director of the Institute for Accountability in SA and a former director of the Centre for Constitutional Rights

 

-July 27, 2010 by Paul Hoffman

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Source:  http://www.timeslive.co.za/opinion/article572849.ece/Yes-we-have-trust-issues 4 (accessed on 28.07.10)