(FXI/IFEX) – On 28 October 2003, FXI and the South African History Archive (SAHA) issued a press statement expressing their dismay at the South African intelligence services’ submission to the Hefer Commission, in response to the commission’s request for intelligence documentation relevant to its inquiry. While the intelligence services have not outrightly refused the commission […]
(FXI/IFEX) – On 28 October 2003, FXI and the South African History Archive (SAHA) issued a press statement expressing their dismay at the South African intelligence services’ submission to the Hefer Commission, in response to the commission’s request for intelligence documentation relevant to its inquiry. While the intelligence services have not outrightly refused the commission access to such documentation, they have made it clear that they are going to make access as difficult as possible.
The Hefer Commission was set up by President Thabo Mbeki in September to investigate allegations that National Director of Public Prosecutions Bulelani Ngcuka was a spy for the former apartheid regime. Media reports claimed that the ruling African National Congress party had investigated the possibility that Ngcuka was a spy for the apartheid government.
The submission, made on behalf of the country’s intelligence services by renowned human rights advocate George Bizos, argues that the commission must make requests for documents in terms of prescribed procedures under three pieces of legislation: the Intelligence Services Act, the Protection of Information Act (POIA), and the Promotion of Access to Information Act (PAIA). It further argues that the commission must justify the need for disclosure.
FXI and SAHA stated that this argument is seriously flawed because firstly, it makes no mention of PAIA’s voluntary disclosure mechanism through which the intelligence services could make documents available to the commission without requiring the stringent legalistic and bureaucratic procedures to be followed. Secondly, the argument’s use of POIA is problematic because the intelligence services themselves have admitted that this archetypal piece of apartheid legislation is anachronistic, and many legal commentators regard it as unconstitutional.
Thirdly, the submission does not address the question of PAIA’s status in relation to the other pieces of legislation where, given the constitutional right of access to information, the PAIA provisions take precedence over the other restrictive laws. Lastly, the submission fails to take into account PAIA’s specific mandate that no one requesting documents from public bodies need indicate why they want them and to what use they will put them. This provision in essence recognises the constitutional principle of the right to know, rather than the intelligence services’ articulation of a need to know.
FXI and SAHA argued that it is clearly in the legitimate interests of all parties concerned, and certainly in the public interest, for relevant documents held by the intelligence services to be made available to the commission. They pointed out that though they recognise that such documents are problematic and potentially damaging, it is possible for appropriate safeguards to be agreed on between the intelligence services and the commission. Failure by the intelligence services to co-operate fully with the inquiry would frustrate the intentions of the president in appointing the commission and would make a mockery of the Constitution’s enshrining of freedom of information.