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Issue of the Moment: Freedom of Speech in South Africa

Journalist Gill Moodie publishes a guide to what the proposed Media Appeals Tribunal tribunal and the Protection of Information bill might mean for freedom of speech in South Africa. The South African Editors’ Forum (Sanef) is leading the fight against the POI Bill and state-appointed media tribunal, saying they will curb media freedom in a manner that is unconstitutional.


Journalist Gill Moodie publishes a guide to what the proposed Media Appeals Tribunal tribunal and the Protection of Information bill might mean for freedom of speech in South Africa.

Why do we need to speak up for free speech?

Not since the days of apartheid has freedom of speech been under such threat in South Africa. Firstly, there is the Protection of Information (POI) Bill that will give the government wide-ranging powers to classify state information and jail those who reveal it. Secondly, the ANC and SACP is pushing for a state-appointed media tribunal to oversee complaints against journalists.  Lastly, the jackboot arrest and detention of Sunday Times investigative reporter Mzilikazi wa Afrika on the basis that he received a fax purporting to be the resignation of the Mpumalanga premier (but never wrote a story) suggests, in Wa Afrika’s own assessment, that the state plans to abuse both the POI Bill and proposed media tribunal.

So what is the POI Bill?

If it went through in its present form, it would give the government wide-ranging powers to classify anything it likes if it is deemed as harmful to the “national interest” and jail anyone for revealing classified information for between 3 and 25 years without the option of a fine. The national interest, however, is defined very broadly and includes, for instance, “the protection and preservation of all things owned or maintained for the public by the State” (i.e. anything to do with parastatals) and also  commercial  information in the government’s possession – therefore any information relating to tenders could be classified.

It gives the power to classify information to “subordinate staff members” in government departments and although the public would be able to apply to have information declassified through the Promotion of Access to Information Act, if the requested information is classified as top secret the government may refuse to confirm or deny it even exists.

At the moment the Bill is at the Portfolio Committee hearing stage in Parliament, where proposed laws (if the Bill is passed, it becomes an Act) are debated and submissions from the public and stakeholders are made. It is before the Ad Hoc Committee on the Protection of Information Bill chaired by Cecil Burgess. Intelligence Minister Dr Siyabonga Cwele said on August 12 that he needed two to three more weeks to consider all the submissions on the Bill.

A bit of history on the POI Bill

The Bill was first issued in March 2008 by the Intelligence Ministry under Ronnie Kasrils and there was an immediate outcry that it was too Draconian. Kasrils sent the Bill to the Ministerial Review Commission on Intelligence comprising  Joe Matthews, Dr Frene Ginwala and Laurie Nathan. The aim of the review was to “strengthen mechanisms of control of the civilian intelligence structures in order to ensure full compliance and alignment with the Constitution, constitutional principles and the rule of law, and particularly to minimise the potential for illegal conduct and abuse of power”.

The commission came back a few months later with recommendations: Chiefly that the Bill be rewritten so that, among other things, the broadly defined idea of national interest be scrapped and that only the Intelligence Minister have the right to classify categories of information – subject to comment by Parliament and interested parties. The suggested changes would bring the Bill in line with the Constitution so that the right to freedom of expression would not be infringed upon.

Then in July 2010, the Bill reached the Portfolio Committee hearings stage and everyone realised that not only had the recommendations of the commission been ignored but that various “softening” factors contained in the original Bill had been removed and certain parts had been made harsher, for example, penalties for revealing classified information.

Further reading: Dave Steward, executive director of the FW de Klerk Foundation, covering the nitty gritty of the Bill. Video: Mail & Guardian editor Nic Dawes’ submission on the POI Bill at the Portfolio Committee hearing. Constitutional-law expert Pierre de Vos’ analysis on the hearings. “Secrecy law threatens SA’s democratic credentials” by Fiona Forde in Business Day

Documents: The report back from the Ministerial Review Commission on Intelligence comprising  Joe Matthews, Dr Frene Ginwala and Laurie Nathan. The POI Bill. Monitoring Group’s web page with submissions to the portfolio committee on the POI Bill and a summary transcript of the hearings. The Bill of Rights in the South African Constitution.

What does the idea of a Media Appeals Tribunal come from?

The proposal for a tribunal was first raised at the ANC’s 2007 conference in Polokwane but fell off the agenda amid criticism that it would infringe on the freedom of the media.

Then in 2010, it was back on the table again as a working paper for the ANC’s National General Council, planned for September. This comes after the Cape Argus newspaper in Cape Town came out with stunning revelations that a former political reporter and political editor of the paper used their positions to help former Western Cape Premier Ebrahim Rasool – now on his way to the United States as South Africa’s ambassador – in a campaign against political rivals within the ANC. The former reporter, Ashley Smith, also claimed and that the two received money from a public-relations company that obtained provincial-government contracts.

The ANC and SACP say that media self-regulation through the Press Ombudsman is not independent as the ombudsman is funded by the media industry and that many people are prohibited from taking legal action against the media because going through the courts is an expensive and lengthy process.   (If a complaint is taken to the Press Ombusdman, the complainant waives the right to sue but the media are bound by ombudsman’s ruling. )

The ANC and SACP say they are committed to media freedom and the tribunal would be independent from government but the media and many in civil society are concerned that it will be abused by the state to crack down on exposes of government corruption and maladministration – and used to penalise journalists for such exposes.

The South African Editors’ Forum (Sanef) is leading the fight against the POI Bill and state-appointed media tribunal, saying they will curb media freedom in a manner that is unconstitutional. Sanef has formed an action committee to build a coalition to fight against the tribunal and POI Bill. Recently, 36 of the country’s editors signed what they called the “Auckland Park Declaration” announcing their opposition to both.

Further reading: article on the nitty gritty of the proposed media tribunal and the arguments for and against. The Ashley Smith scandal and how the Cape Argus investigated and exposed the revelations. How and why the Auckland Park Declaration was signed. Constitutional-law expert Pierre de Vos on why the media tribunal is a case of “Boiled chickens pretending to be plumed peacocks”. The Press Ombudsman’s website, where it publishes all its rulings. Sanef’s website.

Documents: ANC document on Media Ownership, Transformation and Diversity. The SACP on why it supports the ANC call for a media tribunal. SACP deputy secretary-general Jeremy Cronin on why there is a need for a media tribunal. President Jacob Zuma on the media tribunal and why the press need not fear it.

And then police swooped on Mzilikazi was Afrika...

When the police arrested Sunday Times investigative journalist Mzilikazi wa Afrika outside the paper’s office on August 4 while he was on his way to answer questions at a police station about a fax he had received purporting to be the resignation letter of the Mpumalanga premier, it put the scare into many – and not just the media – across the country.

The police had no arrest warrant, did not give Wa Afrika access to his attorney for hours even though he demanded it. They also searched his home and took notebooks without a search warrant and then refused to release him despite the fact that three prosecutors said there was no case. He was released on R5000 bail after his newspaper went to the high court – but then there was nothing on the charge sheet.

Sound like the bad old days of apartheid? It’s no exaggeration to say there is now alarm across newsrooms in the country and that the proposed media tribunal and POI Bill seem far more sinister.

Wa Afrika himself says: “I am worried. I was arrested for receiving a fax. If this Bill is passed, what will they arrest us for next? ... What happened (to me) shows how they are going to abuse (the Bill).”

The international media has picked up on Wa Afrika’s arrest but South African editors have voiced their disappointment on big business’s lack of interest in what is going on. Interestingly, there is dissent in the ANC alliance. Both Cosatu and Human Settlements Minister Tokyo Sexwale have come out in support of the media – as has influential businesswomen and former struggle stalwart Mamphele Ramphele.

Further reading: Main Sunday Times story on Wa Afrika’s arrest. Wa Afrika’s account of what happened during his detention. Sunday Times editor Ray Hartley’s open letter to President Jacob Zuma after Wa Afrika’s arrest. Interview (question & answer) with Mzilikazi wa Afrika about his detention and reporting in Mpumalanga. City Pressjournalist has gun pointed at him in Mpumalanga in the same week of Wa Afrika’s arrest. Japhet Ncube inCity Press: “How freedom dies”. News24’s dedicated “Media under threat” page