This year seems destined to go down in South African constitutional history as the one in which the battle between free speech and national security was fought. The contest between these competing interests was brought into sharp focus again this week, in President Jacob Zuma’s message of condolence at the memorial service of the 13 soldiers tragically killed in the Central African Republic (CAR).
Against the background of reports in the Mail & Guardian raising questions about whether South African troops were in the CAR to protect the economic interests of the African National Congress, Zuma commented that “no country discusses its military strategy in public in the manner in which South Africa is expected to do in this country. Those who are engaging in this game should be careful not to endanger both the national interest and the security of the Republic“. This followed an astonishing statement from the African National Congress that the newspaper was “pissing on the graves of gallant fighters“.
Now it is of course true that military tactics and strategies, for instance, are the stuff of which genuine national security is made. But no-one is calling for that sort of detailed information that would prejudice our security and harm the safety of our soldiers. The public and the media are, however, entitled – indeed obliged – to interrogate our government about why our troops are in the CAR.
The president’s advisers would do well to read the decision of the United States Supreme Court in the most famous military secrets case, which allowed the New York Times and the Washington Post to publish the “top secret” Pentagon Papers. The documents revealed the extent of US involvement in the Vietnam War, and how successive US administrations lied to the public about this involvement. Justice Black said this:
“Paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. … Far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended [for] revealing the workings of government that led to the Vietnam war“.
The principal battleground between free speech and national security remains the Protection of State Information Bill, which began its life as far back as 2008 under then Minister for Intelligence Services Ronnie Kasrils, and which has been winding its way through the legislature ever since. The Bill, known in some quarters as the Secrecy Bill, creates a regime for protecting classified state information which causes harm to national security. It criminalises both possession and disclosure of such information, on pain of stiff jail sentences and/or fines. The Bill was passed by the National Assembly in September 2011 and then went to the National Council of Provinces (NCOP), where some important changes in favour of free speech were made last year. It has now returned to an ad hoc committee of the National Assembly which has until 20 June to consider whether to accept or reject the NCOP’s amendments.
The main problem with the Bill is the absence of public interest and public domain defences. Such defences would constitutionally calibrate the importance of national security and the imperatives of free speech and openness. The NCOP’s amendments – particularly that it is a defence to the crime of disclosing classified information to show that the disclosure reveals criminal activity – are steps in the right direction, but the Bill still falls far short of the constitutional standard required.
The fate of the Bill will ultimately lie in the hands of our courts. But there is an equally important case that will probably come before the North Gauteng High Court later this year concerning the building upgrades to the President’s home in Nkandla. Amabhungane, the M&G Centre for Investigative Journalism, brought an application in terms of the Promotion of Access to Information Act (PAIA) against the Department of Public Works for all documents which evidence the financial implications of this procurement. Despite the PAIA request specifically disavowing any entitlement to security-sensitive information, the response of the state has been a blanket refusal on national security grounds: first, on the basis that Nkandla is a national key point and so, it says, nothing can be disclosed; secondly, on the basis that information is protected under the Protection of Information Act 1982; and thirdly, on the national security grounds of refusal set out in PAIA. The state’s case is that the documents are so replete with security information that the good cannot be severed from the bad. The Court will in due course have to determine whether these defences are good, when balanced against the importance of openness and transparency as to how public money is spent.
In all these contests, the crisp issue is where the constitutional balance should lie when national security and free speech clash. By the end of the year, we may yet have some guidance on this burning issue.
Dario Milo is a partner at Webber Wentzel and visiting associate professor at the University of the Witwatersrand
This post was originally published on Legalbrief and is reproduced with permission and thanks