The National Interest
The breadth, meaning and scope of what "the national interest" entails have been in the news of late. The topic comes up when clipping the wings of freedom of expression in the media - a new "Media Tribunal" is being discussed - and also in the debate raging around the propriety and constitutionality of the draft Protection of Information Bill.Nobody can really pin down what "the national interest" means. It is a flexible concept, used in various contexts in the legislative and regulatory framework of the country. Its meaning is context specific: sometimes it means nothing more than that which is good for the country, at others it takes on a narrower focus. It ought not to be confused with national security, even though it is in the national interest that we have a system which ensures our national security. More importantly, the national interest can not be confused with the specific interests of any political movements, a particular administration or even the careers of politicians and public servants. It is bigger than all of these and should always be related to the whole of the nation, not just a sectional interest group.
It is accordingly cause for concern that Cecil Burgess, ANC MP and chair of the parliamentary ad hoc committee busy with public hearings on the Protection of Information Bill and a trained lawyer himself, saw fit to issue an inappropriate and irrelevant challenge during the hearings. He asked Nic Dawes, editor of a small circulation weekly newspaper, which most politicians read avidly, this question:
"As they would have said in the days of the struggle: are you with the struggle or are you against the struggle, Sir?"
The protection of state information, all issues around national security and the national interest (if it has any place whatsoever in the debate and in the bill) have less than nothing to do with "the struggle". The struggle is today a thing of the past, as the question to Dawes itself implies, and it is best remembered as the policies and programmes of the liberation movements. The struggle was ended by the conclusion of the national accord which led to the adoption of our new constitutional order after its provisions were certified by the Constitutional Court as being consistent with the pre-agreed principles according to which the nation (both those who participated in the struggle and those who resisted it) would live and be organized in the future. A new nation, united in its diversity, is clearly envisaged. The Protection of Information Bill, like all security legislation, has to reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life. This is what the Constitution expressly requires.
Mr Burgess is not alone in his misconception of the situation. This is a product of the "dominant party state" that South Africa has become during its democratic infancy. The lines between party and state become blurred and the interests of both tend to be regarded as equivalent, when clearly they are not. So, it comes as no surprise that during the same hearings another ANC MP, Hlengiwe Mgabadeli, chair of the defence committee, argued that the government and its institutions should be trusted to guard the good and to root out evil without any help from the press. Another member of the committee, also from the ANC, complained that the good government does is not regarded as newsworthy, while that which is negative is afforded coverage in the press.
It is not often that the hurly burly of the post arms deals politics of South Africa provides a truly quotable quote. However, in 2001 when Tony Yengeni, then ANC Chief Whip in Parliament, found it necessary to publicly defend his acquisition from an arms dealer of a fancy 4X4 sports utility vehicle at a massive discount, this is part of what he said in a full page advertisement in a Sunday newspaper, prominently placed at great cost:
"A vigilant and free press is an absolute necessity in our newly found democracy, so that it is able to criticize government and any other institution or citizen for any form of wrongdoing, but all this comes with responsibility, in that it is expected that this same press will do its work in a fair and neutral manner and not to be unfair and take sides in the political battles that are raging in the country."
Two years later Yengeni formally admitted that in this advertisement:
"I falsely attempted to give out that there was nothing improper about the benefit."
This experience ought to prevent members of parliament from raising the "Trust us" refrain. More recently ex president Thabo Mbeki told concerned religious leaders to trust him on the matter of police chief Jackie Selebi. He frustrated the prosecution of Selebi and ended the career of his then National Director of Public Prosecutions, Vusi Pikoli, protecting a loyal friend who has since been convicted of corruption. These experiences suggest that there is no basis for trusting politicians. It is not the role of an independent media to trust politicians. Certainly not in a country in which the current president was facing charges of corruption until a secretly taped conversation was leaked illegally to him thereby affording Pikoli's vulnerable acting successor a false pretext for withdrawing the charges and leaving the way open to the presidency.
It is also a matter of public record that about a third of the members of the ANC National Executive Committee have been criminally convicted or investigated. Gwede Mantashe has conceded that the Scorpions were closed down for this very reason.
This is not a milieu in which the national interest needs to extend beyond national security when it comes to protecting information. Fortunately, the principles governing national security are clearly defined in section 198 of the Constitution. Any attempt at pushing the provisions of the bill under discussion beyond the requirements of national security is not justified in the national interest.
As far as media freedom is concerned, the starting point is the Bill of Rights which guarantees freedom of expression to all, private individuals and media alike. The notion of self regulation of the media is a salutary one. There are always questions around the independence of government appointed media tribunals. The tendency to use them to silence pesky critics, by throwing them in jail in extreme cases, is a situation which does not accord with the ethos of the new South Africa.
Thabo Leshilo, the Avusa public editor, has drawn attention to the foundational values of our new order: our ethos of open governance and transparency. To these he could well have added the notion of accountability. If the drafters of the plans for a Media Tribunal and those responsible for the final form the Protection of Information Act take openness, transparency and accountability into proper consideration in their deliberations, an outcome that aligns with responsiveness to the needs of the ordinary people (not the party, the politician or even the administration) is much more likely to see the light of day.
Paul Hoffman
25 July, 2010.
