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| A protest against pending state secrets legislation in South Africa. (Chris Yelland) |
Irrespective of whether South
Africa actually implements the most draconian parts of state secrets
legislation now under consideration, the media in the continent's most open
democracy already feel under threat. The prospect of 25-year jail sentences for
journalists publishing "classified" information has galvanized
disparate news outlets and journalists groups to work together like never
before.
The ruling African National
Congress, sensing popular discontent over its record on unemployment, housing,
and basic services, has proposed two measures that would rein in a press that
has been making its politicians look bad by rooting out corruption stories.
Journalists and civil society leaders call the legislation overly broad and
badly written. They say it will effectively criminalize investigative
reporting, prevent ordinary citizens from obtaining basic public information,
and allow authorities to classify documents to avoid political embarrassment
rather than safeguard national security.
The
Protection of State Information Bill has lost some of its most
restrictive features since it first surfaced in 2008. But the version that
passed the lower house of parliament in November, where the ANC holds a nearly
two-thirds majority, still gives government the power to declare almost any
information secret--hence its popular name, the "secrecy bill."
Nobel laureates archbishop
Desmond Tutu and writer Nadine Gordimer have blasted the bill. The Nelson
Mandela Centre of Memory has picked apart its legal inconsistencies,
both with the country's internationally admired constitution,
which guarantees freedom of expression, and with other freedom of information
statutes. Even the ANC's powerful ally, the Confederation of South African Trade
Unions, came out against the bill, which would curb union members'
rights to act as whistle-blowers against incompetence and corruption.
Press freedom advocates are also
concerned about the international effects of any legislation, particularly in
Sub-Saharan Africa where authoritarian leaders may use the South African
experience as a pretext to block or even roll back media reform in their own
states. "I tell the ANC whatever we do here has a very big impact on the
continent," said Faith Pansy Tlakula, the African
Union's special rapporteur on freedom of expression.
If the media, civil society, Right2Know,
and political opposition campaign now under way fails to stop the bill,
journalists will turn to the Constitutional
Court to strike it down.
The bill has emerged against the
backdrop of political infighting within the ANC, which is facing mounting
criticism and street protests by groups frustrated with its failure to deliver
on promises to improve the economy and provide housing, health, and education
services. Unemployment is running around 25 percent,
and is higher still among youth.
ANC frustration with media
criticism starts at the top, with President Jacob Zuma, who has brought
defamation suits against a number of publications and leading cartoonist
Jonathan Shapiro, known as Zapiro.
Zuma runs for re-election in a year's time. The ANC also charges the media,
which it perceives as still largely owned and staffed by whites, with failing
to transform quickly enough to reflect South Africa's black majority.
"The hostility to media you
get in government circles is deep," said Anton Harber, professor of journalism
at Witwatersrand University. Like many journalists, he is concerned by another
ANC proposal to set up a statutory Media Appeals
Tribunal to handle complaints against the press. The tribunal would
answer to the ANC-dominated Parliament and effectively undermine the current
self-regulatory Press Council
of South Africa.
"The Protection of
Information Bill is the storm that's making landfall right now; the cold front
parked out in the ocean is the Media Appeals Tribunal, which will be upon us in
the New Year," said Nic Dawes, editor of the weekly Mail &
Guardian, one of the country's foremost investigative newspapers.
"All this is going on
because the ANC has a crisis of legitimacy. It has an internal crisis of
legitimacy. It can't govern itself; it's torn apart by factionalism and greed.
... Then it has a crisis of legitimacy with its electorate who see people
driving past them in very big, smart cars and living nice lives, and are angry
about it," Dawes said.
"The ramifications of this
are bad," said Tuwani Gumani, general secretary of the Media Workers Association of South Africa,
or MWASA. "The ANC has said the only opposition we have are the
media."
Barney Mthombothi, editor
the Financial Mail, agrees. "We
are acting as the opposition because the country doesn't have an effective
opposition. ... Most of the corruption that comes out and actually embarrasses
the government comes out because of media investigations."
The ANC's casting of the media as
its only opponent has been long in the making, according to editors across the
print and broadcast spectrum. Freed of the censorship regime of apartheid,
journalists enjoyed unprecedented freedom and access to information under the
presidency of Nelson Mandela. But these freedoms began to be curtailed by
Mandela's successor, Thabo Mbeki, and this trend has accelerated under Zuma.
"A strong contingent within
the ANC wants the Media Appeals Tribunal," said Mark van der Velden,
editor of the domestic news agency, SAPA.
"It could be even more destructive of press freedom than the secrecy bill.
... It is another instance of the ANC narrowing the space for debate."
Journalists argue that unlike the
secrecy bill, the tribunal is aimed directly at them and could lead to the
registration of news outlets and eventually the licensing of journalists; in
order to fine or sanction reporters in the expanding universe of online
publications, after all, the statutory body would have to define who is a
journalist.
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Zuma has led the push against
South Africa's press.
(Reuters/Mike Hutchings)
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"The Media Appeals Tribunal
is our far biggest threat and we are nowhere near prepared for that,"
according to William Bird, director of the Media Monitoring Africa.
He describes the ANC's motivation for silencing critics as: "'You need to
punish these people.'... They will justify it on the basis of 'you impugn my
dignity', and the whole basis of apartheid was about fundamentally violating
people's right to dignity. That right trumps the media's right to be able to
tell the story even if it's factual."
Many free speech advocates have
made the comparison with the apartheid era.
"The ANC sees that it can do
what apartheid did, which is control information," said MWASA's Gumani.
"The secrecy bill has crystallized everything that everyone hates about
the ANC: arrogance, abuse of power and the impunity that goes with it."
However, voices are now being
raised among some working journalists cautioning against the comparison.
"It's very seductive, very easy to make the comparison to apartheid (but)
it's very counterproductive," said Dawes of the Mail & Guardian.
He argues that journalists should focus on how the press was not free then and
should guard against losing the freedoms it has since acquired. The argument
should be that "to force on us a choice between our professional ethics,
our duty, our vocation and the law is something that should never happen in a
democracy. We are not saying this is like apartheid. We are saying we remember
that pain."
Press freedom advocates have also
started urging the civil society and political coalition against the secrecy
bill to focus less on its impact on the media and more on its effects on
ordinary South Africans in order to build broader political support.
"The bill is not just about
journalists but about my mother not being able to get information from a
government department," said Elston Seppie, executive director of the
Freedom of Expression Institute, or FXI.
"People want to engage politically with the state. It is critical to move
beyond just thinking about the bill as a media-restricting measure, but on its
impact generally on human rights."
Opponents say the bill will lead
to the classification of politically embarrassing information and frighten
potential whistle-blowers and confidential sources. In theory, any journalist
who is given a confidential document by a source is supposed to hand it to the
authorities or face at least five years' jail for possession, thereby
endangering the source.
"The securocrats are going
beyond themselves in wanting secrecy around things that don't need to be kept
secret," said Moegsien Williams, editor of The Star. The chilling
effect of this is already apparent both on journalists and the holders of
information upon whom they rely.
"Even though it's not
enacted, you've got that shift now," said Bird of Media Monitoring Africa.
"Instead of how [officials] can enable access, it's about how they can
prevent access."
ANC members say both the bill and
the tribunal are needed to combat spies and lies. ANC spokesman Jackson Mthembu
defended the bill as a reform of an apartheid-era law and safeguard for
state secrets against unidentified foreign spies. "There is no intention
to curb media freedom in this country," he said. The proposal for a
tribunal arose because self-regulation was not working, he added, and newspapers
were printing false stories about ANC members. He called the Press Council a
"toothless dog" and said its complaints mechanism had to be
"significantly strengthened" to protect citizens' constitutional
right to dignity, otherwise ANC members would continue to push for the proposal
to be turned into legislation. He rejected the accusation, however, that a
statutory tribunal meant government control.
"We have never called for
state regulation of the media," Mthembu said.
The Press Council counters by
saying that aggrieved readers have recourse in civil court or through its own
appeal procedure, which received 240 complaints in the first 11 months of this
year compared with 213 in 2010. "Two thirds of complaints brought are
upheld," according to Press Ombudsman Joe Thloloe.
The press freedom climate is
certainly sunnier than elsewhere in the continent. There are no journalists in
jail, and none have been killed here since the early 1990s. Yet reporters,
particularly broadcasters, have complained of increasing harassment by police
preventing access or filming. Journalists say they have documented some 20
cases in the past two years of reporters and photographers being detained,
sometimes overnight, for interfering with police in the execution of their
duties, but prosecutors did not press charges. CPJ wrote
to Zuma in 2010 about the arrest and ongoing prosecution of Sunday
Times journalist Mzilikazi wa Afrika over an unpublished
story critical of the police.
Editors doubt that the most
restrictive elements of the secrecy bill will make it to the statute books.
Many believe it will be amended during its passage through the upper house, the
National Council of Provinces. Nevertheless, the final version, which must be
signed by Zuma, will still be problematic especially if it does not include the
media's demand for a public interest clause that would allow journalists to
argue that the public's right to know supersedes the need for secrecy in any
given case. That is why they pin their hopes on the 11-person Constitutional
Court. Zuma has recently appointed a new chief justice to the bench but his vote
carries the same weight as that of the other judges who have so far proved
independent. They may strike down the bill as being in violation of Article 16
of the South African Constitution, which guarantees freedom of expression.
"I think that whatever [the
ANC] comes up with can be taken to the Constitutional Court and I think we can
win," Financial Mail editor Mthombothi said. Media lawyer Dario
Milo noted that the court has not always found in favor of the press, but with
the "broad provisions on criminality in its current form the court will
likely strike it down." Nevertheless there is still a risk, and several
editors told CPJ privately that any decision could be close.
An appeals tribunal is still some
way from seeing the legislative light of day, and some opponents think it can
be headed off. Williams, editor of The Star, is hopeful. "The ANC
are democrats. There is no proof they want to roll back the constitution,"
said Williams, who recommends the press keep engaging the ANC leadership.
Others warn against complacency. "This is a time for action," special
rapporteur Tlakula said. "The Media Appeals Tribunal scares me."
CPJ is conducting a fact-finding
and advocacy mission to South Africa. CPJ Chairman Sandy Rowe and Deputy
Director Robert Mahoney met with a wide cross-section of local media, as well
as press freedom advocates, civil society groups, academics, lawyers, and
members of the African National Congress.
Robert Mahoney is CPJ’s deputy director. He has worked as a reporter,
editor, and bureau chief for Reuters throughout the world. Mahoney has
led CPJ missions to global hot spots from Iraq to Sri Lanka. Follow him
on Twitter @RobMahoney_CPJ.
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