Abstract
To the surprise and disappointment of many South Africans who see the country’s 15-year-old constitution as the enabling framework for democratic development in a complex and deeply fractured society, its most basic principles are coming under sustained attack, not from apartheid die-hards, but from the ANC itself.
Nowhere is this more immediately evident than in legislative proposals to limit freedom of the press, and of information more broadly, that are currently working their way through parliament thanks to the efforts of the security sector and of a ruling party that is increasingly hostile to South Africa’s robustly free press.
In the coming months, the second chamber of the legislature, the National Council of Provinces, will be considering the Protection of State Information Bill, which has already been processed and approved by the National Assembly.
The law ostensibly aims to reform our apartheid-era classification regime, an important and necessary project. Unfortunately, it seems the spooks at the Ministry of State Security felt they couldn’t miss an opportunity to tighten their control over sensitive information.
In its current form, and despite numerous improvements produced by nearly three years of lobbying and protest by journalists and civil society, the bill is a clear and present danger to the free flow of information that our constitution envisages as central to the architecture of democracy.
It makes possession or disclosure of classified information – no matter by whom or for what reason – punishable by jail terms of up to 25 years. Activists, journalists and others who reveal government secrets in an effort to show serious wrongdoing by the state will not be able to argue in defence that they did so in the public interest.
This isn’t just a concern for reporters worried about the conduct of the army and intelligence services (the bill gives them extraordinary and unwarranted protection from scrutiny). On the contrary, some of the most cogent opposition has come from poor communities, worried that corruption is robbing them of access to clean water, adequate housing and electricity. Because any organ of state can opt into the classification system, they worry that security concerns will be trumped up as an excuse to keep evidence of graft and mismanagement out of the public domain.
If no major changes are made during this final leg of the parliamentary process, the bill’s opponents will ask the constitutional court to throw it out on the grounds that it is inimical to our bill of rights.
Even as that process unfolds, a potentially more serious threat is taking shape.
Despite Nelson Mandela’s recognition of the centrality of free press to democracy, many in the ANC feel that South Africa’s print media, which has been vigorous in investigating official corruption, incompetence and hypocrisy, needs reigning in.
They are gearing up to begin a parliamentary process aimed at introducing statutory print media regulation that would extend political control over newspapers that have remained stubbornly immune to interference.
In broad outline, the party proposes to create a ‘Media Appeals Tribunal’ that is styled as providing ethical oversight of print media and redress for those aggrieved by their treatment in the press. Members of this body would be appointed by parliament and given the power to levy fines and impose other, as yet undetermined, sanctions.
There is broad recognition among South African journalists of the importance of ethical rigour and of methods to secure quick and inexpensive redress when ethical boundaries are transgressed. There are already overlapping institutions of press accountability and a very active discussion about how to improve them. What we cannot accept is a statutory regime that would lead to the licensing of newspapers and journalists and give political commissars the whip-hand over our coverage.
The South African debate matters not just for our new and complicated country, but for a continent that is struggling to emerge from decades of press controls, first under colonial administration and then under post-liberation governments. We want to continue to lead the wave of openness that is sweeping across the continent, not to serve as an object lesson in how awkward voices can be silenced. A broad and vigorous coalition against these proposals is building in South Africa, but international solidarity will be critical if we are to win the battle. ❒