The ‘Secrecy Act’ is coming

The “Secrecy Act” is coming. And we can get a good idea of government’s intentions from the way ministers and officials have flouted existing freedom of information legislation.

The Protection of State Information Bill is likely to be law in 2013. As a reminder of what we are dealing with, I have posted this item written in February, 2006 for the SA History Archive:

Like so many historians, researchers and journalists, I celebrated when South Africa’s freedom of information legislation came into force in March 2001. But, within months, I was disillusioned. I remain so, except that I now also celebrate the existence of the SA History Archive based at the University of the Witwatersrand. Without SAHA, many remaining fragments of our tortured past would have remained buried, perhaps never to surface.

Although the Promotion of Access to Information Act is supposed to allow any citizen the right to seek and obtain documents of relevance to themselves or work they are doing, the process can be cumbersome, time-consuming, expensive and very often frustrating. In particular, SAHA has pursued the documentary fragments of the past that emerged because of the Truth and Reconciliation Commission (TRC) process.

It has not been easy. Even documents that had once been in the public domain, although not properly scrutinised and analysed, disappeared. A classic case concerned 34 boxes of documentation and two files that had been secured by the TRC. According to the commissioners and the legislation, governing the TRC all this documentation should have gone to the National Archives. It did not. To all intents and purposes, 34 boxes and associated files simply disappeared.

Fortunately, the contents of the boxes and the files had been catalogued: there was a record of the general nature of the contents. I had seen some of these documents, but had not had time to examine them closely and there were several files I was keen to peruse. One concerned the murder of a former ANC activist, Mziwonke “Pro” Jack at the time in 1991 of some bitter internecine feuding in the Western Cape. The little I knew of the contents indicated that it might be possible to establish the reason for the killing of Pro Jack and who might have suggested or even ordered it.

There were also 13 boxes containing the complete public record of the TRC hearings into the apartheid state’s chemical and biological warfare programme. Although these records contained formerly classified documents, all had been vetted by the TRC and lawyers representing both the Foreign Affairs Department and the Non-Proliferation Council. They had cleared the documents — which had been quoted from extensively during the hearings — for release to the National Archives.

Also in the collection were copies of various published reports, including newspaper clippings and the file relating to the assassination in 1988 of the ANC chief representative in Paris, Dulcie September. This included material supplied by the French security services and which had not been translated by the time the TRC mandate ended. It made for a bizarre collection.

In any event, all the documents had been in the public domain and were legally required to be transferred to the National Archives. And it was to the Archives that I directed my initial inquiries in 2000. Verne Harris, then deputy director, confirmed that he had established in 1999 that the 34 boxes had “gone missing”. He was informed that a set of “sensitive” documents had been taken into custody by the Department of Justice. But inquiries initially drew a blank before he was eventually told by the Justice Department that the National Intelligence Agency (NIA) would need to be consulted about the whereabouts of the missing documents.

In October 2000, Harris spoke at a post-TRC conference in Cape Town and mentioned in passing his concern that the NIA had apparently taken charge of a collection of “so-called sensitive documents”. The statement caused a major upset in certain government quarters. Within a week, a circular arrived on the desks of all staff at the National Archives: in future all presentations or papers delivered by officials, even in their private capacity, should be vetted by the ministry of arts and culture, which controls the National Archive.

But Harris avoided the gag by leaving the National Archives and taking up the post of director of SAHA. I saw this move and the pending implementation then of the Promotion of Access to Information Act as heralding the end of the quest for the 34 boxes of missing TRC documents. Instead it signalled the start of months and years of frustration and lengthy delays in official responses, peppered with official claims of ignorance and by deliberate disinformation and downright lies.

I was able to establish that the decision to declare the material in the boxes and files “sensitive” had been taken by the former TRC chief executive, Dr Biki Minyuku. He admitted to me that he had not personally assessed the collection of material, but had relied on the opinion of a former TRC investigator whose reputation among his peers was, to say the least, controversial.

Minyuku was also unable to say under what authority he had acted and his replacement as acting CEO of the TRC, Martin Coetzee, admitted that Minyuku had “acted without mandate”. However, Minyuku maintained, that, as a “matter of national security” and he had arranged with the then justice minister Dullah Omar, to take charge of the documents. They had been removed from the TRC offices “for safekeeping”.

But the justice department denied ever having had the documents. Yet I was able to establish that Omar had written to the TRC in April 1999 stating that he had personally taken charge of them. His then administrative secretary, Johan Labuschagne, subsequently informed some TRC officials that the boxes had been handed on to the NIA.

The Mail & Guardian was prepared to publish the information I was able to dig up and the pressure mounted. In May of 2002, in a statement issued by the national archivist, Graham Dominy and justice department deputy information officer David Porogo, an official investigation was announced. Dominy and Porogo stressed that the responsibility for TRC records rested with the National Archives which would spearhead the investigation.

However, there had already been an admission by justice department deputy director, John Bacon, that the department knew where the documents were. He also conceded that they had been sent to the NIA “for classification”.

What was not publicly known at the time was that Bacon, Dominy and Porogo had been at a meeting at the National Archives on April 26 at which it was decided to fob off my inquiries by announcing an official, Archives-led investigation. In what turned out to be an embarrassing oversight for the parties concerned, minutes of that meeting were released nearly a year later and I obtained a copy.

The minutes stated clearly that the documents were “save(sic) in the offices of the minister responsible for the NIA” and detailed how the national archivist, the justice department and the NIA intended to “deal with the media”. However, only weeks before that meeting, the then minister “responsible for the NIA”, Lindiwe Sisulu, had responded in writing to me that the missing documents “are in the safekeeping of the Department of Justice”.

She added at the time that the role of the NIA “is to advise the Department of Justice regarding [the documents’] appropriate classification before they are forwarded to the National Archives”. There was immediate condemnation of this by lawyers and former TRC commissioners Yasmin Sooka and Dumisa Ntsebeza, who had served as the head of the TRC investigations unit.

But until the minutes of the April 26 meeting became public, there was still confusion about where the missing boxes and files were being kept. In May of 2002, intelligence services spokesperson, Lorna Daniels, delivered this explanation: “[The documents] are technically in the possession of the department of justice, but physically held by the NIA.”

Barely a month later, Sisulu told parliament that the documents were being “declassified in line with their status” by “an inter-ministerial task team”. Yet, on the same day, the NIA deputy information officer, JW McKay, wrote to SAHA explaining: “All the TRC documents are the responsibility of the department of justice and are not in the custody of the agency.”

We now know that the documents were (illegally) in the custody of the NIA; that they have undergone a classification process that appears not to have been properly authorised; that senior officials deliberately misled the media and the public; and that no satisfactory explanations have ever been given. Above all, some of that documentation, previously in the public domain, remains hidden.

However, the chipping away by SAHA, backed by sections of the media, has had an effect: we now know more than perhaps we might, had the bureaucrats had their way completely. And some government departments have shown a degree of willingness to comply with access to information requests. In fact, the department of defence has received the warmest accolades in this regard, although I, for one, reserve my judgement.

After all, this was a department that kept most of the details of its murderous violations of human rights in a separate department, the Directorate for Covert Collection. And when investigators stumbled on the DCC headquarters with its rows of computers and filing cabinets, they were instructed to withdraw with just three files. Twenty-four hours later, DCC headquarters was an empty shell, all the documents, files, computers and disks had vanished.

Now, as 2013 dawns, I think my caution is vindicated because it extended beyond the department of defence to the government and state bureaucracy as a whole.