11th commandment: Thou shalt not prosecute a fatcat

If regard is had to the Protection of Information Bill it would seem that those who drafted it contemplated achieving a balance between the free flow of information and transparency on the one hand and ensuring that national security is protected on the other.

My response has been that this is so much nonsense and will simply put the masses at the mercy of corruption unchecked and on a massive scale.

Let’s examine that by using a fictitious example and see whether the reality will match what we’ve been told is the intention of this Bill. See if the mechanics of the provisions that appear to protect the masses and are designed to conform to constitutionality are actually going to do that.

Our example is a journalist who is approached by a whistleblower who has in his or her possession documents that have been classified but which show that a head of one of the organs of state has been stealing money from funds meant to be used for the public. As things now stand the logical thing for the journalist to do is to put the evidence together and then publish details of the crime while simultaneously handing the proof to the police.

After the Bill becomes law the only journalists who would do that are the ones who are suicidal or fancy prison cooking.

Those who have been extolling the virtues of the Bill and suggesting that it is constitutional are looking at it from a superficial point of view without considering what would happen in practice.

Let’s start with the provisions of Section 43 or whatever number it becomes (note this is the same for all Section numbers of the Bill during this article) :

This states that anyone who has classified information in their possession without authority (here read the journalist) and retains or publishes it or gives that information to another party (here read whistleblower who gave it to him) then the parties concerned face imprisonment of not less than 5 years. I stress here that the documents are proof of crime and that the purpose of classifying them was to conceal that evidence.

At Section 42 the Bill makes provision for offences by state officials who classify documents to conceal crime. All good in theory but as you will see below the process required for proving that this was the case will be long and arduous to say the least. As we have witnessed repeatedly in the past in respect of major corruption allegations relating to government or state, nothing gets done unless there is enormous pressure from sources outside the state and government and even then, as in the arms deal, very little if any real progress is made.

After the Bill becomes law anyone bringing that pressure to bear will be running the risk of long-term jail including immediate arrest for those who have classified documents in their possession and bail denied pending the trial.

If anyone doubts the severity of falling foul of the Bill a quick glance at Chapter 11, which lists the offences and their penalties, makes it abundantly clear that it is probably better to murder someone than be in possession of documents — proving major corruption in government — that have been classified.

The fact that it is an offence must be seen in context of the reality. Though the media and public might see government and state corruption as a major problem, the NPA, police, intelligence and security services have in the past been very slow to react to an abundance of evidence in this area as has been seen in relation to instances such as the arms deal. There was a group called the Scorpions who were very effective against corruption but they were disbanded for some strange reason.

The Bill now makes it an offence — besides what is stated about Section 43 above — to harbour anyone else who has breached the Bill and further provides that if you assist the perpetrator in any way you are liable for the same punishments which, as we have seen, are severe. Moreover if a journalist is given possession of a document and fails to disclose it to the authorities he or she is liable to a fine or imprisonment or both.

So the minute that whistleblower hands the journalist the classified documents — proving crime — they are both in a whole heap of dog shit.

As against that the Bill also says that no prosecution is allowed for a charge which carries a penalty of more than five years without the NPA director’s written authority. Good luck with that. As we’ve seen with tenderpreneurs and major corruption since the Scorpions have gone there’s been some smoke but very little charges in respect of the main culprits.

In other words if you are a journalist in possession of these documents — unless you turn in the whistleblower and hand the proof of crime back to the thief immediately — you will in all likelihood be arrested for possessing them and related charges and the state will do everything in its power to try and block your bail based on the fact that you are a threat to national security.

Journalists need to keep reminding themselves — if I have classified documents that show government theft I am considered a threat to NATIONAL SECURITY.

Chances are you could be in jail for a seriously long period of time even before your trial while the process to prove that the documents, which are classified to conceal crime, makes its very slow and painful progress — if any — towards establishing firstly whether the documents should have been classified, secondly if they were classified in order to conceal crime and only then will the police — if they agree with you — and the NPA — if they agree with the police and you — start charging anybody.

Don’t forget even if the head of the organ gets convicted, so will the journalist because regardless of how good or bad their intention, he or she has handled documents that are classified. It is not up to the media to decide what to classify or not, it is up to those trustworthy heads of organs of state or their nominees. You cannot commit a crime to prove a crime so you as the journalist or whistleblower are going down as well regardless.

So while the journalist languishes in jail pending trial on a statutory offence almost immediately after authorities find out that they have a classified document, the machinery to declassify or charge the real perpetrator will grind on at its usual agonisingly slow pace. If you want an indication of how fast state and government work when there are accusations of major corruption (theft of the masses money) think along the lines of the arms deal, the Public Protector’s report on police leases, tenderpreneurship and all the other “speedy” efforts we have witnessed in the past.

But … but you ask doesn’t the Bill say that you can’t classify documents to conceal crime?

Of course but that is going to require an enormously tedious process to prove which, as you will see below, takes time or at best, failing that, hope that it is picked up by the Cronies/Classification Review Panel … something like that … whose selection process had me in tears. Who says legislators don’t have a sense of humour? That is also set out below.

GOLDEN RULE FOR THE MEDIA – BEING IN POSSESSION OF DOCUMENTS = IMMEDIATE ARREST, POSSIBLE DENIAL OF BAIL, LIKELY CONVICTION OF STATUTORY CRIME versus LONG PROCESS TO DECLASSIFY, SHOW USED TO CONCEAL CRIME AND THEN, IF A MIRACLE OCCURS, POLICE AND NPA ACTUALLY CHARGE SOMEONE.

QUESTION : If after the first journalist and whistleblower find themselves languishing in jail pending trial with absolutely nothing but hot air from the police, NPA and government in respect of the crimes they risked their careers to expose, how many others do you think will undertake the exercise?

Precisely, isn’t crime wonderful?

Let’s now track back and see who gets to classify the documents, who is in charge of monitoring it and what remedies are available to those assisting the journalist probably in jail.

In terms of the definitions the Classification Authority are the heads of the organs of state or those they delegate this function to. In other words in terms of our example everyone needed to carry out the concealment of corruption.

“Information” has a very broad meaning covering every conceivable form of communication.

National security is defined as basically anything that happens on planet Earth as a quick reading of the definition and Section 11 soon demonstrate. Perhaps the drafters of the Bill might give us 10 examples of items that are excluded.

In Section 6 the general principle is set out that the public is entitled to free access to all state information … unless restricted … what bad luck.

Move then to Section 11 which sets out what is considered sensitive information in the national interest or security. Here they have been very specific with provisions like “all matters relating to the advancement of the public good”. The Supreme Court of Appeal in 2090 will still be debating what that clause is supposed to mean. Also seen as vital to the national interest is “details of criminal investigations”. That’s always useful because you could always slip your box of Smarties, Tampax label and Liqui Fruit carton under that banner when classifying documents.

These are the items I suggested previously could be classified as a means of demonstrating that everything on the planet is capable of classification in terms of this Bill.

Now in order to overturn that classification parties will need to employ the procedures set out below which will take weeks, months and years to achieve all the while, as the journalist, you are incarcerated pending your trial for possessing proof of government corruption … in the interests of national security.

If you read the definition of “state information” it says that anything in the possession of or belonging to the state is state information. Section 11 defines sensitive information which includes “all matters relating to the advancement of the public good” among other wonderful catch-all phrases. Section 13 then says that classified information is “sensitive [commercial or personal} information which is in material form. In other words the state can stamp anything as classified information although they are not allowed to use it to conceal crime … shhhh don’t tell them that last part we want it to be a surprise 15 years later when someone decides to prosecute them.

Section 15 gives the levels of classification while Section 16 explains who has the authority which we dealt with above.

Section 17 gives the conditions for classifying documents and says that while they must be guided by Section 21, secrecy is only justifiable if it is in the national interest [security] which is, as good ol’ Section 11 told us, “the advancement of the public good ”, which covers anything on Earth you want it to. Section 17 also has a number of other dos and don’ts like “don’t use the classification to conceal unlawful acts”. Of course the fact that the law of South Africa prohibits tender fraud, kickbacks, theft and everything else has not deterred many from this course of action because the 11th commandment says thou shalt not under any circumstances prosecute a fatcat in South Africa.

What?

11th commandment is don’t get caught?

Who cares? With the new one it doesn’t matter if you do or don’t, nothing is going to happen to you anyway.

Section 21 deals with the factors that the heads of the organ of state must consider when deciding whether to continue classification. The authority to declassify a document which was classified vests in the head of the organ of state that classified it. That’s very handy isn’t it?

There is a Section which states that the head of the organ of state (the thief in our example) must declassify if there is a substantial failure to comply with the law. I wonder how many years and appeals it will take before the meaning of “substantial failure to comply with the law” is defined by our courts. Probably two years longer than your prison sentence for having the document.

Now we get to the good bit. In Section 23 parties are given the right to ask for the review of a specific document (while in jail for having had a copy in the first place). If you read through this section the party is asking the head of the organ who is involved in the crime to review the proof of his crime’s classification. If after the relevant period (months) he refuses, then there is an appeal to the minister of that organ of state. The same guy who has allowed millions to pour out of his portfolio because he is involved, or too lazy, or inept to check up on his department, is the party to whom you appeal.

If you get no joy from the head and the minister of that organ, and only after that process is completed, you may apply to court. Of course what you are going to put into the application will be interesting considering the fact that you will need to explain your knowledge of the documents because the courts won’t grant you orders in a vacuum. They need to know what the documents you are seeking allegedly contain. If you are brave enough to set it out you and whoever told you best reread the bit on being caught in possession of documents. Of course this process will take months and years but if you are the journalist concerned you won’t need to worry because the state will feed you and house you and even take you for walkies in the prison yard straight after they find that you had possession of one of the classified documents.

Where application is made to court to declassify documents the act prescribes a number of measures that must be adopted by the court before a document is declassified which, with appeals against any orders, could take several years before the process yields a public document.

There is however provision for an urgent application to the courts, without going through the whole process, but this is also subject to the whole list of criteria that a court must satisfy itself with if a document is to be declassified. In addition what people consider urgent and what our courts consider urgent are two totally different things.

The fact that you are in jail or a crime may be in the process of being committed are not grounds for urgency on their own. Many people are in prison and tons of crime is being committed — what is it that justifies bringing the matter on urgency? There would have to be a substantial grounds based upon the court’s idea of what constitutes urgency, which would then condone dispensing with the rules of court. What are you going to do then? Set out all these classified documents you have hidden away and suggest a major conspiracy large and looming? While you are claiming urgency a minister, head of an organ of state and the police will be claiming that the only crime being committed is yours in either being in possession of documents or tampering with issues which are of vital importance to NATIONAL SECURITY. In addition that there is a perfectly simple process to obtain declassification of documents that you ignored (while failing to mention that it takes years to get anything out of the party’s concerned).

Good luck with that – oh and while you’re at it cross off the next six World Cups you won’t be seeing them unless they introduce DStv into the prison system.

So all in all those trying to use the process to expose corruption will come up against a brick wall if they are trying to obtain documents. Chances are very few will even bother going the distance and those are the ones who will be called criminals by those trying to conceal crimes.

What the parties who drew this Bill fail to recognise is the fact that if the arms deal under a mountain of allegations and intense media pressure has failed to achieve an appropriate response from the authorities and government, why would mechanisms to put major blocks on the documents to prove the crimes, with prison for those who dare to go near them, do anything other than encourage crime on a grand scale?

That jail for the media would be instant while criminals could wallow in the legal defences that THEY have created for months and years.

Also they need to explain how they could ever justify how South Africa, with one of the least compelling cases for documents to be classified in the interests of national security but which has among the most compelling problems with corruption — having disbanded the Scorpions — could bring about a Bill which on the ground will now remove the masses most potent weapon against corruption — the media?

This Bill is an absolute disgrace.

What is worse is the fact that a DELIBERATE and INTENTIONAL decision was taken to exclude a public interest defence which means the media was very much in mind during the drafting of the Bill.

That tells you that the destruction of transparency and the free flow of information purportedly while trying to enhance national security was not as a result of a mistaken failure to factor in how things work on the ground but as a result of an intentional process of achieving goals best known to those who propose this Bill.

Finally we get to my favourite bit : The National Assembly (who got to fire Vusi Pikoli and disbanded the Scorpions) must choose from a list of nominees selected by the Joint Standing Committee on Intelligence (the guys who never get involved in politics) as to who gets to sit on what is called the Classifications Review Panel. They get to be paid to review all the classified documents to see if they should still be classified and if it’s been done properly.

Of course who is ever going to point out the documents concerned is not clear but they should get around to the ones that are in question at some stage during their sweep. And of course they’ll immediately know that these are documents classified to conceal crime because (insert answer here – NB media and public can’t help or you go to jail).

South Africans, who have noticed the non-political corruption-busting appointments made in respect of the police, NPA and intelligence services and disbanding of the Scorpions, will feel reassured that these new appointments, as in the case of those tasked to fight corruption, will tackle the task of declassifying documents that are used to conceal crime with the same urgency, understanding and brilliance as that shown by the other authorities in other major cases like the arms deal.

Next week : The Loch Ness monster is spotted shopping at Pick n Pay, Jamie Oliver to release the first trained flock of flying pigs.