/ 21 June 2013

Abuse of the law and power are the dangers of secrecy

Edward Snowden.
Edward Snowden.

Our democratic Constitution was meant to make this dream come true. In Section 32, it guaranteed the right of citizens to "any information held by the state" or "any information … held by another person required for the exercise or protection of any rights". This was not meant to be a cosmetic gesture.

In 2000, the Promotion of Access to Information Act became law. We thought we used a belt-and-braces approach to secure transparency. Now, it appears that it may not be so.

Under President Nelson Mandela, transparency was a given. His genius was to act in a profoundly counter-intuitive manner – to be inclusive, open and transparent. He disarmed his opponents with his candour and demonstrated to his supporters the wisdom of his open approach.

The other day, I said in a debate in Parliament that Mandela made truth in government visible because he did not want to be beyond criticism – he wanted to be beyond reproach.

Today, with the secrets of the National Security Agency laid bare by whistle-blower Edward Snowden, we learn of the extent of United States government spying on its own citizens and on other countries.

This is nothing new. Beginning with the protests by civil-rights movements and the Vietnam War in the 1960s and 1970s, the US government has been resorting to surveillance on an ever-increasing basis.

Misconduct
The trade-off for the sacrifice of privacy is supposed to be protection from terrorists. Thereby, however, hangs a tale of a slightly different nature. In 1971, Daniel Ellsberg, a Pentagon analyst, leaked classified information about the Vietnam War. The charges he faced were thrown out by the judge because of the government's own misconduct. The accuser became the accused. Misconduct against citizens is frequently perpetrated by governments engaged in secrecy. No ­wonder distrust of government has grown to the extent that it has.

In South Africa, the secrecy Bill is on President Jacob Zuma's desk. Distrust of his administration is at the greatest level it has ever been in our democracy. The scandal that surrounded the Scorpions and all the shenanigans emanating from the irregular appointment of Menzi Simelane as national director of public prosecutions laid bare much that was wrong in the criminal justice sector. The Supreme Court of Appeal found Simelane's appointment to be constitutionally wanting because the process used in his appointment "was irrational and invalid". That is some indictment of the government.

Distrust of government is so pervasive, informed citizens are unwilling to give it the right to classify information in the absence of a public-interest defence clause. They are perfectly ­correct in adopting this stance.

Leaders of the forum of opposition parties, of which the Congress of the People is a member, have agreed that if they were to win the 2014 elections, the Protection of State Information Bill would be returned to Parliament at once for rectification.

In the interim, going to the Constitutional Court is an option that will certainly be exercised.

The abuse of the law and of power are the manifest dangers of secrecy. Such abuses have occurred with great frequency before and will continue to do so wherever a veil is drawn over the information essential to protecting human rights.

Createing monsters
Alasdair Robert's Blacked Out: Government Secrecy in the Information Age reveals, among other things, how the Stasi secret police in East Germany "constructed a surveillance apparatus that penetrated every corner of East German society" with its 93 000 employees and 173 000 collaborators.

Robert recorded that Raul Alfonsin, the first democratically elected Argentinian president, after eight years of military rule, established a commission that produced the 1984 report titled Never Again. It documented the abduction, torture, and killing of almost 10 000 Argentinians. In Brazil, in 1985, the Catholic Church's archdiocese in São Paulo published a report also titled Never Again that documented the habitual use of torture against thousands of political dissidents over two decades.

The South African Truth and Reconciliation Commission unearthed many horrors also perpetrated before 1994. In some countries, the courts were called on to adjudicate the matter. In 2004, a courageous German federal court overruled the government's objection to opening access to Stasi files. In the words of German Federal President Joachim Gauck, "monstrous things" were revealed. Following Germany's opening of secret police files, to some extent or other, Hungary, the Czech Republic, Bulgaria, Poland, Romania, and Slovakia all followed suit.

Secrecy is the refuge of those who seek knowingly to violate human rights. For the little good it offers, it creates a monster.

The US and the United Kingdom are no doubt seriously embarrassed about what is being revealed. The internet's power to expose thousands of documents at the press of a button must give governments pause to reflect on the secrecy they engage in and the transgressions that they become guilty of as a consequence.

When secrecy is exposed, it is always the government that is unmasked as the real transgressor.

Mosiuoa Lekota is president of the Congress of the People and its ­parliamentary leader.