Fahamu (Oxford)

Africa: Anti-Terror Laws Or Freedom of Information?

opinion

"Yes We Can!" What a brilliant slogan this is. The US presidential hopeful, Senator Barack Obama, certainly has a winner on this one. It denotes so many possibilities. It says we can change the world, we can change our way of life, we can strive towards a better tomorrow for all, and dare I say, we can consolidate democracy in Africa. Yes we can!

It is an irony that these inspirational words come from the United States, a country that for the last eight years of the Bush-Cheney administration has made it possible for African leaders to boldly say "No We Won't!" or "No We Don't Give A Damn!" when it comes to doing all they can to promote the culture of openness and transparency in structures of governance and public administration. It was the Bush-Cheney administration that first argued for, and entrenched, the notion that openness and transparency were the enemies of national security.

When the Bush-Cheney administration waged war on terror its enemies were not just Osama Bin Laden, the Taliban and Saddam Hussein; this list also included the civil liberties of American citizens, most especially Freedom of Information rights. The Bush-Cheney administration's religious zeal in passing draconian anti-terrorism laws was only equaled by the administration's resolve to weaken the Freedom of Information Act and other government-in-the-sunshine laws. African leaders took note.

Small wonder therefore that the government of Mr. Festus Mogae, the former President of Botswana, caused controversy in 2003 when it publicly stated that FOI was not a priority for Botswana. Two years later Mr. Benjamin Mkapa, the former president of Tanzania, is reported to have told a press conference that Tanzania would never have an FOI law as long as he ran the show. Mkapa's Namibian counterpart took the cue and expressed the same sentiment. Further north in 2007 the former military ruler of Nigeria and born-again democrat, Mr. Olusegun Obasanjo, scuppered the impressive efforts by Nigerian civil society to have an FOI law passed when, for the most inane of reasons, he refused to sign in to law the FOI bill that had been approved and adopted by both houses of parliament. The least said about Robert Mugabe's Access to Information And Protection of Privacy Act the better. "No We Won't", the African leaders have declared.

However when it comes to adopting anti-terror laws and sprucing up old public order and secrecy laws, leaders from Tanzania, Nigeria, Namibia and Zimbabwe have sang an impressive "Yes We Can", in fortissimo. The tune has reached crescendo with numerous African leaders citing as their argument the old red-herring that access to information endangers national security. This silly argument has even been made by a group of people who should really know better; the South African parliament; The same parliament that passed the highly regarded Promotion of Access to Information in 2000. However the members of parliament here seem to be uncertain of the bold, courageous and progressive steps that they took in 2000 and the fear of terrorist ghosts under the bed has seen them pass an anti-terrorism law - granted, it is much more liberal than its kin on the continent, Europe and certainly the US. The South African parliament is now touting a protection of information law which is in effect an official secrets act purportedly because "we are sustaining heavy and concerted espionage even from countries we regard as our friends", as one senior spymaster told members of the intelligence legislation committee during public hearings on South Africa's Protection of Information Bill.

Sadly this sentiment even permeates the public service as recently evidenced, again in South Africa, by the statement of the municipal manager of the coastal city of Durban, a city that that lies on the shores of the Indian Ocean, who recently declared, in a style reminiscent of a low-budget version of Sir Humphrey, that "Information is dangerous". Poppycock!

Fact of the matter is that, people that are starved of information will be dangerous to any state. No, we are not safer in the dark, it is in the dark that we are mostly likely to harm each other. This was clear for all to see in South Africa when two years ago the townships went up in flames again, like they did during the anti-apartheid struggle era, because people felt that the democratically elected government was not taking their socio-economic needs and service delivery concerns seriously. Research conducted by the University of the Free State in the wake of these service delivery protests showed that one of the major causes of these riots was the lack of information on service delivery.

A lot of harm has been done to Africa and her people in the name of national security. It is important therefore that, as the process of building and developing constitutionalism unfolds, Africans must have a dialogue amongst themselves on what constitutes "national security" in the African context and not derive the concept from a post-9/11 American framework.

Our leaders must be called on to accept that national security and public interest are not served by denying their citizens access to information and by violating their right to information. Properly crafted access to information laws and competent regulation of the access to information regimes do not endanger national security, in fact they promote national security. A properly crafted access to information will provide for justifiable protection of information whose disclosure is likely to cause harm to national security. There is no need for an extra piece of legislation such as an anti-terror law, a public order law or security law or indeed an official secrets law in order to provide legal protection of sensitive information. All that a drafter needs to do is establish a set of exceptions to the right of access to information and ensure that these exceptions would be regarded as justifiable limitations of the right in any free and democratic society. Next the drafter would have to clearly define what constitutes national interest or national security and then build into the law a general public interest override or defense.

In the dissenting minority judgment on the recent South African Constitutional Court case - the Independent Newspapers (Pty) Ltd versus Minister for Intelligence Services (CCT38/07) [2008] ZACC 6 (22 May 2008) - Justice Sacks noted that:

"...the point of departure for the statute is that people have a general right of access to information possessed by the state, coupled with a more limited right of access to information in private hands. Exemptions, including those set out in favour of national security, are presented as exceptions, and not as the norm. Thus the relevant provision dealing with national security does not provide a blanket ban on disclosure of such information, but rather furnishes carefully delineated and objectively reviewable grounds for nondisclosure."

Some countries have taken great care in attempting to balance national security concerns with the public's right to know, others have not fared so well. Nevertheless, the result is that in law, the concept of national security or national interest is generally conceptualized in very broad, and subsequently, very confusing terms which gives leeway to arbitrary decision-making which more often than not violates fundamental rights such as the freedom of information. Long before the assault on civil liberties in the name of national security by the Bush-Cheney administration, the US Supreme court had proclaimed in New York Times Co v United States 403 US 713 (1971) that:

"The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic."

In the Ugandan and the South African access to information laws, the drafters envisaged information that would have to be protected in the interest of national security would include information pertaining to law enforcement, defense, security, safety of persons, international relations of the country, and economic and financial interests of state. In terms of the defense, security and international relations exceptions, these laws go on to describe the types of information that would be protected which includes, among others, military tactics or strategy, military exercises, operations undertaken in preparation of hostilities, quality and quantity of weapons, capabilities and deployment of the armed forces, intelligence information, methods and equipment for collecting and handling intelligence information, diplomatic correspondence, etc.

The draft laws in Tanzania and Zambia follow a similar, but less comprehensive, treatment in defining national security considerations that may limit access to information. At the extreme end of the scale is South Africa's new Protection of Information Bill which provides for the protection of information in order to prevent the "national interest" from being harmed. The term "national interest" is then defined in a very broad manner that includes "matters relating to the advancement of the public good", or "matters relating to the protection or preservation of things owned or maintained for the public by the State". The logical interpretation of this provision effectively means you can be denied information about the opening hours of your local public park or botanical gardens! The Kenyan draft Freedom of Information bill, is a bit more nuanced than the South African draft secrecy law in formulation of the national security exception to access to information. The Kenyan draft law states that "national security shall be reckoned in accordance with applicable international standards". It is a bit vague and it may have the same effect as the South African draft law, granted without the venom.

It's quite needless to say that such broad formulation of what constitutes "national interest" or "national security" can easily lead to unrestrained classification of information due to unconstrained interpretation of the provisions. Such interpretation is also easily in conflict with constitutional provisions for transparency and access to information and the right to seek, receive and impart information.

The Independent Newspapers (Pty) Ltd versus Minister for Intelligence Services case is quite instructive on the mater of national security versus access to information and open justice. In the case, the applicant, the Independent Newspapers, had sought to join in the matter between Mr. Billy Masetlha, the former head of the South Africa's National Intelligence agency, and President Thabo Mbeki who had dismissed Masetlha from his job. The Independent Newspapers had sought to join the proceedings in order to obtain written arguments by both parties and other records related to the court proceedings including an affidavit that had been given in camera by Mr. Masetlha. The Minister of Intelligence Services opposed the release of the documents invoking the national security interests. There judges of the Constitutional Court had to establish the right balance between the security of the State and protection of open justice and access to information. Eventually the judges decided to release major parts of the documents withholding only a few paragraphs.

When delivering the majority judgment on behalf of the Constitutional Court Deputy Chief Justice Dikgang Moseneke noted that the pursuit to national security should always be tempered by other considerations such as the protection of open justice. The Deputy Chief Justice stated that:

"It follows that where a government official objects to disclosure of a part of the record before a court on grounds of national security, the court is properly seized with the matter and is obliged to consider all relevant circumstances and to decide whether it is in the interests of justice for the documents to be kept secret and away from any other parties, the media or the public...In my view, a court in that position should give due weight both to the right to open justice and to the obligation of the state to pursue national security within the context of all relevant factors...In deciding whether documents ought to be disclosed or not, a court will have regard to all germane factors which include the nature of the proceedings; the extent and character of the materials sought to be kept confidential; the connection of the information to national security; the grounds advanced for claiming disclosure or for refusing it; whether the information is already in the public domain and if so, in what circumstances it reached the public domain; for how long and to what extent it has been in the public domain; and, finally, the impact of the disclosure or non-disclosure on the ultimate fairness of the proceedings before a court."

In concluding this article it is better to retrace our steps back to the situation in the United States. The Bush-Cheney administration marked the advent of the cutting of the United States from is moorings of supremacy of justice and liberty. Ronald Rumsfeld, John Ashcroft, Alberto Gonzales and Condoleeza Rice were all the all-too-keen assistants in this operation. Despite the effects of the foreign policy of the Bush-Cheney administration on consolidation of civil liberties in African states, we must all endeavour to proceed from the premise that secrecy does not exist to protect national interest or national security. Indeed national security should be preserved in order to protect the democratic system and other constitutional rights such as security of the person, the right to life, human dignity, political rights, socio-economic rights and, dare I say, the right to freedom of expression and the right of access to information. National security must not be made to hang like an albatross over any of these rights.

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