A belligerent government claims victory. A defiant coalition of media and civil society organisations vows that it will seek legal recourse.
The decision to ram through parliament the so-called ‘secrecy Bill’ on what has been dubbed Black Tuesday – the vote was brought forward by a day in a futile attempt to avoid embarrassing comparisons with the apartheid government’s gagging of newspapers on Black Wednesday in 1977 – is a calculated legislative rebuttal by the African National Congress of constitutional values. It likely won’t be the last.
The now probably unavoidable future tussle in the Constitutional Court over the legality of the Protection of State Information Bill (POIB) is obviously important. Also important, though, is the cost to the ANC of what is an essentially meaningless victory, if for no other reason than it is nowadays virtually impossible for government to prevent disaffected employees from leaking politically damaging material.
And even if legislation prevents the local media from publishing, such reports will still exist in cyberspace. The wider world will still look askance at our shenanigans, will still use the information to assess our creditworthines and our trustworthiness.
The ANC decision to fast-track an unaltered POIB, just days after making noises about conceding a ‘public interest’ defence, is a clue to one of the few significant ANC fissures caused by policy differences, as opposed to leadership feuds. The tripartite alliance’s broad church is nowhere near schism, but previously unthinkable heresies are being muttered in the pews.
Forget the bleats from the media and civil society. These are worthy but ultimately futile, the squeaking of brake shoes that on occasion slow but cannot stop the ANC juggernaut.
More significant was opposition unity – from the Pan Africanist Congress on the left to Freedom Front Plus on the right, for the first time all voted against the ANC – and that public resistance came from within the alliance. Although the SA Communist Party in true Stalinist fashion supported POIB, the Congress of SA Trade Unions mobilised against it.
A number of prominent ANC figures ignored party canon that frowns on public disagreements on policy. Nelson Mandela, who has always been punctilious about not seeming to undermine his successors, sent a subtle rebuke with his foundation, through the Nelson Mandela Centre of Memory, expressing concern that POIB does not meet required ‘standards of constitutionality and aspirations for freedom of information and expression.’
The SA Human Rights Commission and the New Age newspaper are both viewed as close to President Jacob Zuma. Both opposed the Bill.
However, it was the ‘ravings’ of former Intelligence minister Ronnie Kasrils against the Bill that particularly irked the ANC. It was ‘strange and shocking’, said the presidential spokesperson, that Kasrils appeared to want to rule state security ‘from beyond the grave’.
Interestingly, when preparing an earlier version of this legislation in 2008, Kasrils had been persuaded to allow a public interest defence. The Kasrils’ Bill bit the dust when former president Thabo Mbeki got the boot.
Deputy President Kgalema Motlanthe’s position is particularly intriguing. A fortnight ago Motlanthe assured parliamentary reporters that the Bill would not be ‘rammed through’ and that there could be a ‘meeting point’ with editors on the public interest defence.
Following this, the ANC Chief Whip said the Bill would be passed to the committee that considered such changes. ‘Motlanthe’, said Mathole Motshekga, ‘is a leader of the ANC and an MP – what he says carries much weight. He is there to provide leadership.’
Not too much leadership, it seems. A week later Motshekga was enforcing on ANC MPs the strictest possible discipline to vote the Bill. While 229 of them, including Motlanthe, dutifully did, one ANC MP dared abstain and 34 managed to find excuses not to be there.
A couple of dozen swallows do not a summer make, but are better than none. Especially given that for the foreseeable future – because of the rightward tilt that recent appointments have lent the Constitutional Court – it is the ANC itself that must be swayed on such issues.
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