All the President’s secrets

The Right2Know Campaign released its 2014 ‘Secret State of the Nation’ report on 9 September 2014, which claims that secrecy and security-state capacity are being used to shield political actors from embarrassment and scrutiny.

The report states that the use of secrecy is particularly visible when it comes to the office of the Presidency and President Jacob Zuma himself.

One section in the report, titled “All the President’s secrets”, focuses on “How President Zuma and his allies have used secrecy and ‘state security’ as a political survival strategy”.

For the sake of accuracy, the full section of the report is published below with permission from the The Right2Know Campaign.

All the President’s secrets…

How President Zuma and his allies have used secrecy and ‘state security’ as a political survival strategy

Though analysts have taken note of this emerging trend in the past, the biggest political scandals of the past year have been marked by a tendency in the country’s security structures to act as ‘political bodyguards’ for the President and his allies.

During the Public Protector’s investigation of Nkandla, or the inquiry into the Guptas’ landing at Waterkloof airbase, ministers of the security cluster began to take on an ever more public role in shielding the President from political pressure.

Most recently, after chaos erupted in Parliament during President Zuma’s parliamentary questions sessions, the security cluster assembled to announce that “certain measures” would be put in place to ensure “the authority of the state shall not be undermined, neither will the authority of Parliament be undermined”.

The encroachment of the security cluster into democratic political life should be seen as deeply troubling.

But more broadly, how have secrecy and security-statist tendencies manifested in public life?

Nkandla, the house that secrets built

The Problem: The state abused secrecy laws and lied about national security to shield the President and government from embarrassment

The Story: In 2009, when newspapers first reported upgrades to the Nkandla homestead, estimated then at R65-million, government denied any knowledge of the project and claimed no public money was being spent.

In 2012, when it emerged that over R200-million was spent, investigative journalists at amaBhungane used PAIA to ask for the procurement documents that would show where funds were coming from and how they were being spent. The Department of Public Works refused, citing apartheid-era secrecy laws: the National Key Points Act of 1980, the Protection of Information Act of 1982 and the extra-legal cabinet policy on Minimum Information Security Standards.

DPW Minister Thulas Nxesi argued that all documents about Nkandla spending were so full of security-sensitive information that none could be released. But over the court of AmaBhungane’s legal challenge to this decision, the DPW eventually backed down, releasing 12 000 documents that revealed massive abuse of public funds. Not one of them affected national security in any way. In other words, the DG and Minister had lied under oath about the need for secrecy.

The same thing happened when Nxesi classified the report of the Ministerial Task Team investigation into Nkandla as ‘Top Secret’. When it was finally released, under separate legal challenges from the Democratic Alliance and amaBhungane, it did not include any security-sensitive information. Again, Nxesi had lied.

In November 2013, the security cluster ministers again deployed ‘national security’ as a coverup tool, when they first rushed to court to block the release of the Public Protector’s report on Nkandla.

They claimed the report contained “several security breaches and top secret documents”.

The state’s case collapsed when the Public Protector pointed out that her office relied on the same documents given to amaBhungane, which were already publically available on their website.

Zuma’s Spy Tapes

The Problem: The President’s lawyers have spent years fighting the release of documents that would reveal whether or not Zuma should currently face corruption charges

The Story: The ‘Spy Tapes’ are probably the most explosive secret in SA’s political soap opera. They led to the dropping of Jacob Zuma’s corruption charges and paved his way to the presidency, but attempts to get the tapes released have created turmoil and factionalism in the National Prosecuting Authority (NPA) and led to a legal tussle that has lasted years.

The Spy Tapes are secret recordings of phone calls between senior members of the Scorpions and the NPA, who were then pursuing corruption charges against Zuma. The recordings are apparently a result of another element of the intelligence services bugging the phones of senior NPA officials.

Though these recordings were probably illegal in themselves, they were leaked to the Zuma legal team in 2009, who used the tapes as leverage to get Zuma’s charges dropped. Excerpts of the tapes suggest that the investigators were considering the timing of bringing charges, deciding whether to bring charges against Zuma before or after the Polokwane conference in 2007. This was used by the NPA head Mokotedi Mpshe to drop the charges altogether, saying that the timing issue was an abuse of process.

But the full contents of the Spy Tapes have never been revealed, and Zuma’s legal team has fought for years in court to prevent their release.

In August 2014, Zuma’s five-year legal battle ran out of steam in the Supreme Court; the SCA ordered that both the recordings and all related documents be released.

Until the spy tapes are made public (along with all supporting documents that lay bare the NPA’s reasons for dropping Zuma’s corruption charge) South Africans will never fully grasp the extent to which intelligence services were subverted for political ends, and whether in fact the justification offered for dropping Zuma’s charges was valid.

Secrets at the Seriti Commission

The Problem: Commission is withholding or ignoring large amounts of information, undermining the public’s right to the truth

The Story: The Seriti Commision has been tasked with investigating allegations of corruption in the 1999 Arms Deal, which paint a picture of widespread corruption within the highest echelons of the South African state and the international arms industry.

President Zuma is among those who have been implicated in those allegations, as he faced a raft of charges relating to corruption after his financial advisor Schabir Shaik was convicted for soliciting a bribe on Zuma’s behalf. The charges were controversially withdrawn shortly before he became president in 2009. It was also Zuma who initiated the Commission of inquiry in late 2011, pre-empting a constitutional court challenge.

But the Commission has come under sustained criticism for its approach, and key whistleblowers withdrew in protest from the Commission.

In August, three independent witnesses at the Commission (former ANC MP Andrew Feinstein, and researchers Paul Holden and Hennie van Vuuren), announced their decision to withdraw after struggling for over 18 months to get the Commission to release critical documents that are needed for the inquiry to function and for the public to participate meaningfully.

These range from minutes of meetings where the Arms Deal was hashed out, to evidence collected as part of official investigations into alleged Arms Deal corruption and various government reports on the details of the contracts and tendering process.

In other instances, the Commission has ruled key evidence to be inadmissible, including a draft copy of the Auditor-General’s report (used in previous State investigations) and a leaked report commissioned by one of the arms companies (Ferrostaal), the contents of which speak directly to their role in wrongdoing in the South African Arms Deal.

Most recently the Commission chair, Judge Willie Seriti, controversially ruled that witnesses should only speak to documents and evidence that they themselves have authored. Effectively this means that evidence of corruption would only come to the Commission’s attention if it were submitted by people who were party to the corruption. These combined conditions have created a situation that deeply undermines the public’s right to know. The Seriti Commission appears to be playing into the hands of securocrats and those who have been implicated in the Deal by blocking access to information to the public, and apparently failing to engage with this evidence itself.

The missing Khampepe Report

The Problem: The Presidency spent millions in legal fees to keep information out of the public domain, despite its importance to public interest

The Story: This is a secrecy battle inherited from another President, but which continues to the present day. Twelve years ago, former President Mbeki sent two South African judges (Justices Sisi Khampepe and Dikgang Moseneke) to observe the 2002 Zimbabwe elections. The report they produced – the so-called Khampepe report – is now confirmed to have questioned the fairness and legality of the election. However, it was never made public. In other words, the South African government would have endorsed the election of a neighbouring government that it knew to be invalid.

In 2008, after learning of the report’s existence, the M&G newspaper used PAIA to request that it be released. The Presidency refused, and the matter went to court. It was only in February 2013, after a long legal battle, that Judge Joseph Takalani Raulinga finally ruled that the report should be made public after taking a ‘judicial peek’ at its contents. The Presidency was ordered to release the report within 10 days.

But the report has not been released. Though the President has changed, the office of the Presidency continues to fight the document’s release, appealing the decision at the Supreme Court of Appeal. For a period the report mysteriously went missing from Judge Raulinga’s chambers (the Presidency’s legal team claimed this was the only copy). The Judge, meanwhile, reportedly claimed that a state attorney had tried several times to get the report from his office while he was absent. A copy of the report has since ‘resurfaced’ and the matter will be heard in the Supreme Court of Appeal later this year.

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All the President’s secrets