R2K responds to attack from Mac Maharaj

Mac Maharaj's disingenuous attack on the Right2Know Campaign (Mail&Guardian 3 August 2012) ironically smacks of the very "self-interest" he accuses his critics of, showing an alarming disregard for the rights of whistleblowers in the process (see here).

R2K has been singled out here for condemning Mr Maharaj's attempts to have amaBhungane journalists Sam Sole and Stefaans Brummer, and Mail&Guardian editor Nic Dawes, prosecuted for possessing an NPA transcript which allegedly reveals wrongdoing by Mr Maharaj.

First, it is not clear how the M&G has broken the law. Section 41(6) of the NPA Act prevents disclosure of investigatory material, not its mere possession. The M&G did not publish the transcript - they blacked out the relevant sections when they published the story - so they are not guilty of what Maharaj has accused them. That these charges are being pursued nonetheless suggests an attempt to isolate and intimidate critics of the Presidential spokesperson.

(It should also be noted that Mr Maharaj's apparent concern about confidentiality is highly selective. The same transcript that forms the basis of his charges against the Mail&Guardian is already in the public domain; Mr Maharaj himself handed the transcript to his biographer, and it has been published by the City Press.)

Second, in his attack on R2K as a civil society movement and the Mail&Guardian as a media outlet, Mr Maharaj fails to acknowledge how the law itself places an unjustifiable limit on the rights on whistleblowers. While of course witnesses should be protected in criminal investigations, the NPA Act is extraordinarily broad. Essentially any document in the NPA's possession is secret, and anyone who discloses that information faces up to 15 years in prison: it need not be formally classified as a secret, it need not relate to national security or the personal safety of a witness to the state - and most importantly, there is no whistleblower protection or public interest defense written into the law.

Mr Maharaj appears to be arguing that it is justifiable to criminalise those (whether in the media or not) who might receive ‘classified' information that exposes corruption or wrongdoing. While he states that his "prime concern" is with the breaking of the relevant law by those within the NPA who presumably ‘leaked' the information, he belies this by supporting the criminalisation of those in the media and civil society who receive and then impart some of that information to the public. In other words, the act of reception is unlawful and thus the ‘transgressors' must be punished. There are no charges being pursued against anyone in the NPA - who, within the narrow interpretation of the relevant law, are the ones who would have committed ‘unlawful' acts by leaking the information - so it is once again the messenger who is energetically targeted and also publicly attacked.

This is wholly consistent with the broader trend of whistleblower persecution - both in the state and in the private sector - in which those who expose and implicate the powerful are identified, isolated and intimidated.

Mr Maharaj would like to frame this as a press freedom issue - as part of the broader political struggle between the media and the political elite. However, the broader issue at stake is the right of any citizen (whether a journalist, a civil servant, or an ordinary member of the public) to expose unlawful conduct or wrongdoing, without which there can be no democratic accountability.

This is particularly concerning given that Maharaj has conveniently misrepresented R2K's call for the President to speak out against the charges (not, as Maharaj suggests, "[to] intervene to stop the police from pursuing the charges").

Indeed, as organisations committed to social justice and the free flow of information, we do call on South Africa's leaders (and their spokespeople) to act in ways that would show they are fundamentally concerned about the criminalisation and public targeting of whistleblowers.

Statement issued by R2K National coordinator, Murray Hunter, August 6 2012

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