In 1994 President Nelson Mandela appointed a commission of inquiry to investigate illegal arms dealing and particularly the sale of weapons to Yemen, a country to which South Africa was not allowed to sell arms under government policy. The Commission was headed by Judge Edwin Cameron and became widely known as the Cameron Commission.
(The terms of reference of the Commission are contained in Government Notice R1801, Government Gazette 16035 of 14 October 1994.)
To help decide its procedures, the Commission held public hearings on whether its investigation should be open or closed. On 7 November 1994, the Commission decided in favour of openness, citing South Africa's Interim Constitution and recognizing that the Commission was bound by that document. The Commission issued a six-page ruling on the subject which was widely reported.
According to the ruling, the key principle in the Commission's approach on this issue was to be openness and accessibility to the public. The Commission outlined three possible exceptions to the overall principle, namely if the safety of individuals would be put at risk, if national security would be threatened and if legitimate commercial requirements called for non-disclosure. The Commission would consider these possible exemptions on a case-by-case basis. The Commission also stressed that moral and ethical norms like openness and accessibility in the affairs of government and state agencies, as reflected strongly in the Interim Constitution, would be taken into account in adjudging applications to go into closed session.
In response, the Minister of Defence, Joe Modise, issued a letter authorizing persons to testify before the commission as long as national security was not breached. In its investigations, the Cameron Commission soon came across a classified document, the Log 17 pamphlet. This document listed the countries to which South Africa was able to sell arms. The Commission wished, as part of its policy of openness, to refer to Log 17 in public.
The South African National Defence Force (SANDF) objected and launched an application for secrecy in regard to this document. The Commission ruled on 25 November 1994 that it would release the documents. Mr Justice Cameron stated:
"Reasonableness as a standard of public conduct in South Africa now requires that decision-makers should have due regard to appropriate constitutional standards and principles. These include in the present case the value of openness and visibility in government and official processes. In other words, an assessment whether the reasonable justification test has been fulfilled may include in the weighing process giving consideration to the public's constitutional right to know and the constitutional value of an open society. To put the matter differently, the public's right to know should not be omitted from an assessment whether the reasonable justification standard has been fulfilled." (Transcript of Cameron Commission 1433).
"The Defence Force had argued in support of its application to keep Log 17 from public scrutiny that diplomacy in arms transactions requires a measure of secrecy. This argument was rejected:
It is precisely that secrecy that may create the conditions for subterfuge, duplicity, abuse of power, corruption, malpractice and irresponsibility. The right of the public, where reasonable and practicable to know must therefore be asserted." (Transcript of Cameron Commission 1440).
While Mr Justice Cameron acknowledged that the decision to allow disclosure was not "without risk of harm or without anxiety to its consequences", he concluded that the risk in the present case was "not sufficient to entitle us to bar from the press and the public their important right to examine our past, including our past armaments dealings, whether or not that examination causes embarrassment and even complexity, whether for other governments or indeed, for the present government of national unity."(Transcript of Cameron Commission 1441).
On 28 November 1994, the SANDF decided to launch a review application. On the day that application was initially heard, 2 December, the Weekly Mail & Guardian newspaper published an older version (January 1989) of Log 17. That day SANDF continued with its court application. The judge granted a temporary interdict and scheduled the case to be heard the following week.
That weekend SANDF filed further papers, trying to shore up its legal position with respect to Minister of Defence Joe Modise. On Tuesday the following week, SANDF announced that it had withdrawn the application. The reason given was the Weekly Mail & Guardian publication.
The rulings by the Cameron Commission on the issue of openness and transparency even in an area where there are potential national security concerns, were strong reflections of a new era in South Africa with regards national security limitations on the right of access to the public and the media to issues of public concern.
Lene Johannessen CALS Media Project
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