The ANC copy­ing the Nats

Finweek English Edition - - Front Page - stephenm@fin­ STEPHEN MULHOLLAND

It’s dif­fi­cult to com­pre­hend how such enor­mous pow­ers as­sumed by pri­vate in­di­vid­u­als can be ac­cept­able

GIVEN RE­CENT STEPS against the me­dia by the po­lice, it now ap­pears to be the case that one can risk a crim­i­nal charge merely by be­ing in re­ceipt of a faxed mes­sage. Un­til the au­thor­i­ties re­veal more than they have so far in their charges against Sun

day Times jour­nal­ist Mzi­likazi wa Afrika, would it be rea­son­able to as­sume some­one could face the wrath of the po­lice sim­ply for be­ing the pas­sive re­cip­i­ent of a fax?

That co­nun­drum brings to mind a piece of apartheid leg­is­la­tion that would have fit­ted in well as part of the work of the great Czech writer Franz Kafka. His fa­mous book The Trial takes the reader into the night­mare of the col­lec­tivist, bureau­cratic state where no one knows if what they are do­ing is wrong, charges against them lack speci­ficity while those ac­cused of un­said crimes strug­gle, in their void of in­for­ma­tion, to re­spond.

The old Nats, like the ANC to­day, were in a per­ma­nent state of ir­ri­ta­tion over what they saw as un­nec­es­sary in­ter­fer­ence by the press in pub­lic af­fairs. As part of their at­tempts to cast a veil over ac­tiv­i­ties of the state – which they be­lieved were the busi­ness of the Na­tional Party and no­body else – they passed in 1980 some­thing called the Na­tional Key Points Act.

That poi­sonous piece of leg­is­la­tion made it a crime to re­port on any­thing that hap­pened at a “key point”– as de­fined by the state. No pic­tures of any­thing at key points were per­mit­ted and no writ­ten or vis­ual or vo­cal de­scrip­tions or pub­li­ca­tion in any way of mat­ters to do with key points was al­lowed.

All that to pro­tect the na­tional in­ter­est. How­ever, only the spooks who in­hab­ited the then state’s se­cu­rity ap­pa­ra­tus knew which places, in­stal­la­tions, in­sti­tu­tions, etc, were key points in terms of the Act and were also those in sole pos­ses­sion of what de­fined the na­tional in­ter­est.

Thus, as a jour­nal­ist, you had to be able to guess at what a key point may or may not be. You’d only dis­cover that if pub­li­ca­tion was fol­lowed by crim­i­nal charges or if, in the pur­suit of in­for­ma­tion, you dis­closed to a state func­tionary your in­tent to pub­lish some­thing con­cern­ing what was a “key point” but which you didn’t know was a key point be­cause ev­ery­thing that was a key point was se­cret and its ex­is­tence avail­able only to the forces of the state.

The Congress of South African Trade Unions (Cosatu) has raised con­cerns “with re­gard to the pow­ers as­sumed by the min­is­ter un­der the Bill, in­clud­ing the power of the min­is­ter to take any steps which in his or her opin­ion may be nec­es­sary in re­spect of the se­cu­rity of these (key point) ar­eas.

“Such wide pow­ers,” says Cosatu, “with­out ob­jec­tive over­sight can lead to abuse by the ex­ec­u­tive as it sub­jec­tively acts with­out ac­count­abil­ity and con­trol. Of greater con­cern is the man­ner in which the Bill pur­ports to give pri­vate in­di­vid­u­als, in their ca­pac­ity as own­ers, the right to take any steps which in their opin­ion they think nec­es­sary for the se­cu­rity of such places. Even with the req­ui­site over­sight struc­tures it’s dif­fi­cult to com­pre­hend how such enor­mous pow­ers as­sumed by pri­vate in­di­vid­u­als can be ac­cept­able where the fo­cus is on na­tional se­cu­rity.” And then there’s this haunt­ing pas­sage from

The Trial by Kafka: “Once more the odi­ous cour­te­sies be­gan, the first handed the knife across K to the sec­ond, who handed it across K back again to the first K, now per­ceived clearly that he was sup­posed to seize the knife him­self, as it trav­elled from hand to hand above him, and plunge it into his own breast. But he did not do so; he merely turned his head, which was still free to move, and gazed around him. He could not com­pletely rise to the oc­ca­sion, he could not re­lieve the of­fi­cials of all their tasks; the re­spon­si­bil­ity for this last fail­ure of his lay with him who had not left him the rem­nant of strength nec­es­sary for the deed...”

Be­ware, cit­i­zens.

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