The relationship between the government and journalists has been particularly tense over the last five years, culminating last year in the passing of a Protection of State Information Bill (dubbed the ‘Secrecy Bill’ by its opponents) and ongoing threats by the ANC to establish a statutory Media Appeals Tribunal, with harsher sanctions against offending journalists than the current self-regulatory system allows for.
The Tribunal proposal, announced for the first time in 2007 at the ANC’s 52nd national conference in Polokwane, was one of the strongest indications yet of the party’s growing discomfort with the freedom and power of especially the commercial print media. The ANC’s hostility is widely perceived to result from the vigorous reporting of corruption, mismanagement and non-delivery by journalists who often fashion themselves in terms of an unofficial political opposition against the dominant ANC and its allies. To add to the adversarial reporting, South Africa has seen a wave of civic protests against the lack of basic services promised to communities who still experience the economic marginalisation resulting from apartheid. In one such protest in the Free State town of Ficksburg in 2011, the police responded violently, killing a protester, Andries Tatane.
Although disillusionment with the ruling party has therefore also found more widespread expression, it is the media that have borne the brunt of the ANC’s criticism. And although critics have pointed out that the Secrecy Bill will perhaps impact even more adversely on civil society organisations trying to bring government wrongdoing to light without the access to legal resources that the media enjoy, the fight against the Bill has largely been framed in terms of an attack on media freedom. The Tribunal proposal in turn is based on the ANC’s criticism of the self-regulatory South African Press Council and Press Ombudsman. Their desire to impose stronger sanctions on offending media has also been argued in terms of the Constitutional value of human dignity, which in their view should temper the right to freedom of expression. The proposal stated that “freedom of expression shall not be elevated above other equally important rights such as the right to privacy and more important rights and values such as human dignity.”
The Bill was first published for comment as the Protection of Information Bill of 2008 under the leadership of then minister of intelligence Ronnie Kasrils, and was needed to replace the apartheid-era Protection of Information Act of 1982. The latter Act was seen as harking back to Cold War era paranoia and as such was at odds with a democratic South Africa.
The first draft of the Bill was met with vociferous criticism from media stakeholders and civil society advocates, who decried the allegedly draconian penalties and sweeping definitions for classification in favour of ‘national interest’. Kasrils wrote in response to criticism from the Mail and Guardian’s investigation journalist Sam Sole that that the government had “no interest in hampering the work of investigative journalists”. Rather, the Bill sought to criminalise the activities of “information peddlers” that sought to “undermine the integrity of government institutions”, Kasrils explained, and called on the public to engage with the Bill. Three months later, Kasrils’ own ministerial review commission sharply criticised the 2008 draft of the Protection of Information Bill. Comprised of ANC veterans Joe Matthews and Frene Ginwala, as well as leading security studies academic Laurie Nathan, the commission critiqued the sweeping basis for non-disclosure of information set out in the Bill. “In particular,” the commission wrote in June 2008, “the Bill’s approach to ‘secrecy in the national interest’ is reminiscent of apartheid-era legislation and is in conflict with the constitutional right of access to information”. The Bill was withdrawn later that year and Kasrils resigned as a South African cabinet minister, along with twelve others, following the resignation of then state president Thabo Mbeki in September 2008.
In the years to follow, government threats to the media and access to information were largely limited to remarks made by senior politicians of the South African tripartite alliance, consisting of the South African Communist Party (SACP), the Congress of South African Trade Unions (Cosatu) and the ruling ANC. The reprieve was short lived however. Following the 2010 FIFA Football World Cup, the ANC re-invigorated debates around access to information and media freedom as the Protection of Information Bill was brought back onto the national agenda after being redrafted.
The second incarnation of the Protection of Information Bill continued to attract criticism from the media and civil society, expressed in online campaigns, public demonstrations and media debates. Kasrils described the Bill as a “dog’s breakfast of toxic gruel”. This Bill however justified itself as seeking to protect information in the interest of “national security”, defined as the “resolve of South Africans as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life, and includes protection of the people and occupants of the Republic from hostile acts of foreign intervention, terrorist and related activities, espionage and violence, whether directed from or committed within the Republic or not, and includes the carrying out of the Republic’s responsibilities to any foreign country in relation to any of the matters referred to in this definition”. In addition, the Bill’s definition of a “state institution” included over a thousand South African organisations, ranging from local government bodies to public universities, which were potentially bound by the Bill to classify their information. Journalists, activists and whistleblowers found to be leaking or in possession of classified information may face harsh penalties, including prison sentences.
In addition to the re-introduction of the Protection of Information Bill onto the national agenda, the ANC published a discussion document ahead of its National General Council titled “Media Transformation, Ownership and Diversity”. The document called for parliament to establish a public enquiry for the establishment of the statutory Media Appeals Tribunal, rekindling fears among the media for media freedom and independence. Following criticisms that it was a toothless watchdog that was unable to impose appropriate sanctions (e.g. fines) to journalistic wrongdoing, the Press Council pledged to undergo a public consultation process. The ANC responded to this consultation process by promising to give the media the “space” to reform. The outcome of the Press Council’s countrywide public hearings was a revised Press Code and constitution for the Press Council. The Media Appeals Tribunal has yet to return to the national agenda.
Although reactions to the re-introduction of the Protection of Information Bill often relied on inflated rhetoric (e.g that the country has gone ‘back to the apartheid era’), there is no doubt that the Bill reflected a move towards secrecy within the state apparatus. The widespread public response to the Bill could however also be viewed in optimistic terms as an indication of the vibrancy of debate in the post-apartheid public sphere, and the way that public participation could shape – albeit in limited terms – the legislative process.
A variety of stakeholders formed the Right to Know (R2K) campaign in Cape Town in August 2010. Currently claiming the endorsement of over 400 civil society organisations and over 16 000 individuals in South Africa, the campaign has sought to raise awareness of the threat of the Bill and encourage community empowerment through access to information. The campaign has arguably been the strongest unified voice in combating the Protection of Information Bill, and has presented a challenge to the ANC and the Bill’s parliamentary ad hoc committee through its campaigns on social media, public protests and marches on Parliament – campaign protestors were temporarily barred from National Assembly after attending parliament with their mouths taped shut with black gaffer tape in February. The Bill’s ad hoc committee made several concessions over the course of the year in response to submissions from civil society. As the Bill changed to become the Protection of State Information Bill, so was its ambit narrowed down to the state security apparatus in a mandatory classification order, with opt-in clauses for other state organs. Additionally, concessions have been made for the provisions of two independent panels to provide for, firstly, a mechanism to appeal a classification decision and, secondly, to review and conduct oversight of the classification process. While civil society and media stake holders have welcomed the concessions made over the past year, the ANC continued its refusal to include public interest and public domain defenses in the Bill. ANC MP Luwellyn Landers reportedly claimed in August that writing a public interest defence into the Bill “would place journalists above the law”, and was thus not possible. As the Bill was to be tabled to the National Assembly in September, the R2K campaign called for and coordinated protests around South Africa, which culminated in a 2000- strong protest on the steps of parliament on September 17. A week later, the ANC again withdrew the Bill for “public consultation”, which coincided with the adoption by a wide range of African media and civil society organisations, of the African Platform on Access to Information (APAI) which calls for access to information legislation in all African countries.
Six weeks later, on November 11, the ANC announced that the Bill would be tabled in the National Assembly, despite promises to open up public consultation on the legislation. National Press Council chairperson Yusuf Abramjee called for a November 22 campaign called “Black Tuesday”, and asked South Africans to wear only black in opposition to the Protection of State Information Bill. The Black Tuesday campaign references “Black Wednesday” of October 19, 1977, which saw three newspapers and more than twenty activists banned by the apartheid regime. The Bill was passed by the National Assembly on November 22, by a total of 229 votes in favour of 107 against and two abstentions.
While there has been vocal criticism against the Protection of State Information Bill in recent months through the R2K campaign and South African media campaigns, these movements have themselves been problematised. Director of the Centre for the Study of Democracy at the University of Johannesburg, Stephen Friedman in November wrote for the South African BusinessDay that some of the campaigners have misunderstood the intent behind the Bill. “Contrary to popular belief,” Friedman wrote, “this bill is not aimed at closing down media coverage of government corruption and incompetence. If it was, it would not say information cannot be classified if it reveals wrongdoing or ineptitude in the government. Nor would changes have been introduced that seek to ensure that only security information is secret.” Writing in the academic journal Ecquid Novi: African Journalism Studies, Friedman further pointed to the “elite bias” of the South African media’s reportage of the effects of the Protection of State Information Bill. While the South African media has decried the effect the Bill will have on investigative journalism and exposing corruption in South Africa, Friedman says the Bill will do little to curb the liberties of the media and suburban elite, while affecting civil society organisations working in poor communities more adversely. Where the South African media claims to inform South Africa citizens of all aspects that affect life in the country, Friedman argues, “In reality, it informs only some citizens of only some realities”.
What has become clear in the debates so far is that the media will remain a contested space in a new democracy.