Stephen O’Rourke: Big guns and fractured opposition unite to condemn South Africa’s state secrecy law

FAR FROM the cares of Europe or the Arab Spring, a furious political drama has been playing out in South Africa.

It involves President Jacob Zuma, the African National Congress party leader and one-time fellow inmate of Nelson Mandela on Robben Island, who won the country’s general election in 2009 with a thumping 65 per cent of the vote. That result gave the ANC, in power since 1994, 264 out of 400 seats and a firm majority within the National Assembly over their smaller, divided political rivals.

Meanwhile, a small but determined band of investigative journalists continued to turn over old ground. Back in 1999, South Africa had entered upon its largest post-apartheid government contract, a £3 billion arms deal to secure the nation’s defences: and so lots of fighter jets, submarines and helicopters, with every contractor vying to out-do its rivals. In 2005 President Zuma, then ANC deputy president, was sacked following his close aide’s conviction on corruption charges connected to the deal, and the aide was jailed for 15 years. Slowly, the prosecution authorities compiled a case against Zuma himself.

Following the 2009 election, two things happened. Firstly, in March 2010, Security Minister Siyabonga Cwele proposed in the National Assembly a controversial Protection of Information Bill, allowing government officials full discretion to classify information in the national interest, with prison penalties for anyone in unauthorised possession of such material. Such was the clamour from opposition parties and the great and good of South African society that, despite its majority, the government withdrew the bill.

Next, President Zuma announced three months ago that a full and independent commission of inquiry was to be set up to investigate the 1999 arms deal. The president’s office issued a statement that Mr Zuma “had taken account of the various developments around this matter and also the fact that closure on this subject will be in the public interest”. Opposition parties welcomed the development, but questioned the timing of it.

The query as to timing was perhaps answered when, almost immediately, the Protection of Information Bill was put back before the National Assembly by the ANC. This time there would be no withdrawal, and the legislation powered through on 22 November. Its adoption by the ANC-dominated upper chamber, and subsequent signing into law by the president, is a fait accompli; and when the bill becomes law it will not allow a public interest defence for possession of state information. The maximum penalty for violation of the law will be 25 years’ imprisonment. One commentator has observed that such a law would have seen those who uncovered Watergate jailed.

The law has been condemned by, among others, Nelson Mandela and Desmond Tutu, as well as Nobel Laureate Nadine Gordimer. It has been condemned as an open attack upon the freedom of the press and investigative journalism within a democratic society. On the other hand, Brian Dube, spokesman for the country’s State Security Agency has dismissed criticism of the bill as unfounded and sensationalist, saying: “To argue that life under the Protection of State Information Bill will be characterised by censorship and information blackouts is sensationalising of the highest order.”

When the bill becomes law there is a real possibility of a constitutional challenge, which would require the signatures of 134 of the 136 opposition MPs. The challenge seems likely, since the controversy appears to have united the country’s disparate opposition parties. So the stage seems almost set for a bruising showdown involving President Zuma’s ANC government, his opponents, and the Constitutional Court of South Africa. It could get very interesting.

• Stephen O’Rourke is an advocate depute and member of Terra Firma Chambers.