12 Dec 12 | Africa, South Africa
South Africa’s highest court, the Constitutional Court, last week agreed to hear an application about a motion of no confidence in President Jacob Zuma. A High Court judge’s findings suggested that “the public are entitled to hear the debate” as the Constitution enjoins South Africans to prevent the suppression of “the dignity of even a single voice expressing a different perspective”.
The ruling African National Congress (ANC) in November used its parliamentary majority to shut down a no confidence debate assessing ANC leader Jacob Zuma’s continued suitability for the job of president of South Africa. Section 102 of South Africa’s Constitution allows for a vote on a motion of no confidence in parliament’s National Assembly. If, after debate, the motion is passed, the president, cabinet and deputy ministers have to resign.
No confidence debate will discuss Zuma’s suitability as president (Jordi Matas – Demotix)
In its rejection of opposition parties’ proposal, the ANC argued that the motion would be “frivolous” as its aim was “to try the President in a court of public opinion and tarnish his image and that of the ANC in the media”.
Eight of the eleven opposition parties in parliament, led by the official opposition Democratic Alliance, brought an urgent application in the Western Cape High Court to instruct the speaker of parliament to allow the motion. Judge Dennis Davis could not find in the applicants’ favour, as the rules of parliament do not make provision for no confidence motions.
However, he added that “when political parties, who represent approximately a third of the electorate, decide to initiate a motion, and to seek wider support for the motion on matters of such importance, that too is their right.
“The […] people are entitled, as citizens of South Africa, to hear what our national representatives have to say about a matter of such pressing importance. Of course, once the debate takes place and reasoned voices across the floor are heard, the majority may well vote the matter down and that would be the end of it. But what cannot be justified is that the debate should not be allowed to take place.”
Meanwhile, the ANC changed its position and “welcomed” the debate, but proposed that it only takes place during the next parliamentary session in February 2013.
The party is currently engaged in a bruising jockeying for positions in the run-up to its elective conference in December, where Zuma’s deputy, Kgalema Motlanthe, may challenge him. The opposition to the debate suggested that Zuma’s hold on the party may be more tenuous than his allies want others to believe. His parliamentary lieutenants seem to have realised this, prompting their volte-face on the debate. Their insistence on scheduling the debate next year nevertheless still suggests fear that it may worsen intra-party divisions.
Opposition parties’ application to the Constitutional Court will be heard in March next year.
21 Nov 12 | Africa, South Africa, Sub-Saharan Africa
South Africa’s Right2Know Campaign (R2K) is “Camping out for Openness” outside parliament in Cape Town this week as deliberations over the draconian Protection of State Information Bill draw to a close.
The National Council of Provinces, the second house of parliament, is due to adopt the bill by the end of November. The bill is ostensibly aimed at instituting a long-overdue system to regulate access to government documents.
However, despite persistent appeals from, among others, luminaries such as Nobel Laureate Nadine Gordimer, the Secrecy Bill’s system of classification and declassification has not been couched in the country’s constitutional commitment to an open democracy and the free flow of information.
Instead it opens the door to the over-classification of state information while instituting harsh punishments for the possession of classified information, undermining basic citizenship rights.
Pressure from civil society, led by the R2K Campaign, produced limited concessions this year. One of the most pertinent demands was to include a public interest defence clause to ameliorate the anti-democratic effects of the bill. The ruling African National Congress (ANC) eventually conceded by allowing a clause enabling a public interest defence, but only if the disclosure revealed criminal activity. This has been criticised as an unreasonably high threshold.
Right2Know march in Pretoria, South Africa, September 2012. Jordi Matas | Demotix
The ANC this month backtracked on two other key concessions, as pressure from state security minister Siyabonga Cwele on ANC parliamentarians seemingly paid off:
- The Secrecy Bill at first took precedence over the Promotion of Access of Information Act (PAIA). PAIA allows citizens to request information from government agencies. The ANC then agreed to an amendment that would give PAIA precedence. This decision was again overturned after pressure from Cwele. Activists argue that allowing the Secrecy Bill to trump PAIA is unconstitutional, as PAIA is prescribed by the constitution and has to remain the supreme law in access to information matters.
- A five-year sentence for disclosing classified information has been reintroduced after the ANC agreed to have it removed. This will actively discourage whistleblowers in the civil service from coming forward with information revealing corruption.
Cwele’s predecessor, Ronnie Kasrils, this week addressed the R2K camp outside parliament, distancing himself from what he deemed the “devious” and “toxic” bill. While he was minister, he withdrew the 2008 version of the bill after a similar outcry about its lack of constitutionality.
According to R2K, the other remaining problems with the Secrecy Bill include:
- It criminalises citizens instead of holding to account civil servants who are responsible for keeping secrets.
- A whistleblower, journalist or activist disclosing classified information with the purpose of revealing corruption or other criminal activity can still be prosecuted under the “espionage” and related offences clauses to avoid them invoking the limited public interest defence.
- Persons in possession of classified state information face draconian jail terms of up to 25 years.
- The bill’s procedure to apply for the declassification of information conflicts with PAIA, while the newly created Classification Review Panel is not sufficiently independent: “The simple possession of classified information appears to be illegal even pending a request for declassification and access.”
- Someone can be prosecuted for “espionage”, “receiving state information unlawfully” (to benefit a foreign state), and “hostile activity” even without proof that the accused intended to benefit a foreign state or hostile group or prejudice national security — only that the accused knew this would be a “direct or indirect” result.
- Information classified under apartheid law and policies that may be counter to the constitution remain classified, pending a review for which no time limit is set.
Parliament’s engagement with the bill, which started in July 2010, has been characterised by Orwellian “doublethink”, as exemplified in Cwele’s declaration that “protect(ing) sensitive information … is the oil that lubricates our democracy and we have no intention — not today, not ever — to undermine the freedom we struggled and sacrificed for all these years”.
R2K has vowed to continue pressuring parliamentarians to replace the Secrecy Bill with a law “that genuinely reflects a just balance between the public’s right to know and [the] government’s need to protect limited state information”.
Christi van der Westhuizen is Index on Censorship’s new South Africa correspondent
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19 Nov 12 | South Africa, Sub-Saharan Africa
The South African Communist Party (SACP) this week made a public call for a law to be instituted to protect the country’s president against “insults”. The call, by one of its provincial branches, was in response to growing public outrage about R240 million (about £17m) worth of taxpayer’s money spent on upgrading the private homestead of the incumbent, Jacob Zuma.
Minister for higher education and SACP general secretary Dr Blade Nzimande reportedly supported the call by the KwaZulu Natal SACP but later said he is calling for a public debate on the issue.
Two investigations are underway into the price tag attached to “security upgrades” at Zuma’s private residence in Nkandla in rural KwaZulu Natal, which far exceeds that of residences of former presidents.
South Africa’s President Jacob Zuma speaking to a union congress (Demotix)
In parliament last week (15 Nov) Zuma insisted that “all the buildings and every room we use in that residence was [sic] built by ourselves.” In response, Lindiwe Mazibuko, the leader of the official opposition Democratic Alliance (DA), pointed out that the upgrades are not limited to “security” but include 31 new buildings, lifts to an underground bunker, air conditioning systems, a visitors’ centre, gymnasium and guest rooms. It reportedly even includes “his and hers bathrooms”.
Since the excessive amount became known at a parliamentary meeting in May this year, investigative journalists have requested further information using the Protection of Access to Information Act. The public works department, however, refused to comply, citing the National Key Points Act, which makes it illegal to distribute information about sites related to national security. The public works ministry also launched an investigation to find the whistleblower who leaked the information to the media, with a view to prosecution.
The SACP believes that questions about the Nkandla extensions, including by DA leader Helen Zille who led a thwarted visit to the homestead, harm Zuma’s dignity. In a thinly veiled threat, the SACP claimed such questions would undermine South Africa’s “carefully constructed and negotiated reconciliation process and could unfortunately plunge our country into an abyss of racial divisions and tensions.”
Insult laws “protecting” presidents from criticism exist in France, Spain and across South America and Africa.
Christi van der Westhuizen is Index on Censorship’s new South African correspondent
05 Nov 12 | Africa, South Africa, Sub-Saharan Africa
In South Africa, the singing of “struggle songs” remains a bone of contention. Some South Africans contend, along with the courts, that songs should be banned when their lyrics incite violence. Other South Africans regard the songs as a way to remember the anti-apartheid struggle.
On 31 October, South Africa’s ruling African National Congress (ANC), along with former ANC Youth League leader Julius Malema, reached an agreement with the white “minority rights” lobby group AfriForum and the Transvaal Agricultural Union (TAU) to avert the banning of the anti-apartheid struggle song Dubula iBhunu. “Dubula iBhunu” is a vernacular Zulu phrase that translates as “Shoot the Boer”.
AfriForum, along with TAU, and Malema and the ANC in its capacity as political party agreed that:
In the interest of promoting reconciliation and to avoid community friction, and recognising that the lyrics of certain songs are often inspired by circumstances of a particular historical period of struggle which in certain instances may no longer be applicable, the ANC and Malema commit to counselling and encouraging their respective leadership and supporters to act with restraint to avoid the experience of such hurt.
Their agreement has been made an order of the court. The ANC abandoned its appeal against the banning of the song while AfriForum agreed not to pursue the banning of the song. The parties committed themselves to further dialogue to deepen mutual understanding. In practice, ANC leaders will discourage their followers from singing songs deemed “hurtful” to “minority groups”.
Malema “rediscovered” the anti-apartheid song in 2010
ANC Youth League leader Julius Malema “rediscovered” the anti-apartheid song in March 2010 in the process of bolstering his appeal to young black people who feel excluded from the material benefits of the country’s transition to democracy.
The South African Bill of Rights enshrines freedom of expression but explicitly excludes incitement of violence or advocacy of hatred to incite harm on the basis of race, ethnicity, gender or religion.
AfriForum obtained an order from the High Court last year banning Dubula iBhunu. The judgment found that the song referred to white Afrikaans people as rapists and robbers and dehumanised them by calling them “dogs”. “The process of dehumanisation is recognised … as one of the steps leading to genocide.” Malema was found guilty of hate speech.
The judgment included a reminder that South Africa’s jurisprudence regards
the right to dignity as “at least as worthy of protection as the right to freedom of expression… freedom of expression does not enjoy superior status in our law.”
The ANC appealed against the finding. It also lodged an appeal against another case involving the song: a member of the public, Willem Harmse, had taken another, Mohammed Vawda, to court in 2010 as the latter wanted to use “Dubula iBhunu” during a march against crime. Vawda argued that the song’s lyrics indicated “shooting apartheid” while Harmse, a white farmer, argued that the words could cause him personal harm. The high court had found the song to be an incitement to violence.
The appeal in the Harmse case was postponed in September this year in anticipation of the appeal in the case involving AfriForum, which would have come before the Supreme Court of Appeal this week.
The Mail and Guardian, a leading opinion-making newspaper, questioned the ANC’s decision to withdraw its appeal:
The settlement forestalls the testing of a questionable judgment with far-reaching implications. South Africans should be able to understand that what is legally permissible and what is wise or constructive are not the same. The law must leave wider parameters than political morality.
Nevertheless, South Africa has over the past few years witnessed the rise of a public discourse of intolerance that increasingly invokes violence, including Malema’s public declaration that he would “kill for Zuma” in the run-up to the 2009 election. Jacob Zuma subsequently became ANC leader and South Africa’s president. Rather than it being merely about legality or wisdom, the threat of violence has been used for specific political ends: to intimidate detractors and mobilise support.
In resurrecting Dubula iBhunu, Malema was following the example of Zuma, who had revived another “struggle song”, Awuleth’ Umshini Wami (“Bring My Machine Gun”). Zuma used the song as a war cry when his financial advisor faced a corruption trial in 2005, which implicated him, and when he (Zuma) faced rape charges in 2006.
Christi van der Westhuizen is Index on Censorship’s new South African correspondent
