The Freedom of Expression Institute (FXI) has joined the Mail &
Guardian newspaper, the SA Chapter of the Media Institute of
Southern Africa (Misa-SA) and the SA National Editor's Forum
(Sanef), in opposing a state bid to onduct a nulear weapons smuggling trial behind closed doors, according to a release.

Daniel Geiges, Garhard Wisser and Krisch Engineering are alleged to be part of an international nuclear smuggling network (the so-called 'AQ Khan network'), whose activities were exposed in 2003 while attempting to smuggle components for uranium enrichment to Libya. According to the Mail & Guardian , the arrest of Geiges and Wisser was a product of close collaboration between the South African authorities, British intelligence and the Central Intelligence Agency (CIA).

The State has applied for the trial to be held in camera according to prohibitions of publication of information in terms of the Criminal Procedure Act, the Nuclear Energy Act and the Non-Proliferation of Weapons of Mass Destruction Act. Not all charges will be heard in camera, though. The three are also being charged with fraud and forgery, relating to their smuggling activities, and the State has not expressed a concern about these charges being heard in open court.

The State is arguing that the release of information relating to the other charges may compromise national security. Information about the technology used in the manufacture of weapons of mass destruction – the State argues – may be used in the manufacture of these weapons.

In the FXI's view, the case is clearly a matter of considerable public interest, given that it involves the prosecution of individuals for allegedly smuggling nuclear material, in contravention of South Africa's non-proliferation undertakings. Production of nuclear weapons is a matter of huge public interest internationally at the moment. Therefore it is naive for the State to think that it can hold a hearing of such international significance out of the glare of the media. The attempt to close the court seems to be a knee jerk reaction, governed by a securocrat mentality that assumes that anything to do with nuclear materials must be a national security concern, and should be kept secret. Such censorious behaviour is inappropriate in a democracy committed to the public's right to know.

Broadly speaking, closing a court to the media and other interested parties would be justifiable in situations where imminent threats to health and safety may arise from the disclosure of information. It is not at all clear from the facts of this case that this is so. Largely, the case involves nuclear smuggling activities undertaken between 1999 and 2002, so the State will have difficulty arguing that the threats to the security of the country flowing from an open court trial are imminent.

It is cold comfort that the court will be open for the hearing of the fraud and forgery charges, as it will be impossible for the media to make sense of these charges out of context of the other charges. In fact, the decision of the state not to apply for the court to be closed in relation to these charges is a mere sop. The media will be unable to report on the guts of the case. Also, a case like this will take a long time; it may even go on appeal. To close it at this stage is premature and will prevent reporting on the case as it unfolds.

The FXI is extremely concerned about the attitude in the State’s application that the media, generally, cannot be trusted or relied upon to be careful and selective in handling and publishing sensitive information. The over-broad approach, which the State adopts, that all proceedings be in camera and that the location of the Court itself be moved, is draconian, misplaced and constitutes an overzealous infringement of the collection of rights which ensure open justice in the South African judicial system.

Even if the Court were to find it necessary to restrict access to the general public, this does not mean that the court should prohibit bona fide journalists to be present, on application by the media organisations concerned, and subject to such general and specific restrictions as this Court may impose.

The FXI has argued for an approach that evaluates the evidence in light of the State’s security concerns and protects only that evidence that is at the core of such concerns. All other evidence should be released and available to the public and media as in the ordinary course of regular trial proceedings. In the event that the Court initially determines that certain evidence should be protected, but later concludes that it does not warrant such protection, this evidence should then be made available to the public and media at the earliest possible opportunity.

For more information contact:

Jane Duncan
Executive Director
082 786 3600

Na'eem Jeenah
Director: Operations
084 574 2674

Simon Delaney
Head: Law Clinic
083 397 0057