UPDATE APRIL 25, 2013, BLACK THURSDAY: Today, Parliament will vote on the amended Secrecy Bill and we can expect the ANC to vote as a block to pass this Draconian legislation despite widespread opposition from a range of political parties, civil society, academia and the media. The head of the Anglican Church in Southern Africa, Archbishop Thabo Makgobo, is one of the most prominent individuals who have opposed the Bill. The late Kader Asmal, the ANC struggle stalwart and former cabinet minister, and Ronnie Kasrils, under whose watch the Bill was originally conceived (see below), are others.
Right2Know, the coalition that has led opposition to the Secrecy Bill, will be picketing outside Luthuli House in Johannesburg from 1pm to 4pm and observing a silent vigil in Parliament in Cape Town from 1.30pm. Please join them if you can!
On another front, late January saw the release of the ANC Mangaung resolutions that included the ruling party putting the proposal for a a parliamentary inquiry on press regulation back on the table. See below for a series of three articles I did earlier this year in a bid to unpack the most important ANC resolutions regarding the media:
UPDATE JAN 2013: While the ANC has put its proposal for the Media Appeals Tribunal on hold (for now), the amended Secrecy Bill is soon to be signed into law when Parliament starts up again.
The ANC used its parliamentary majority (with two lone abstentions) in 2012 to pass the Bill in Parliament against wide-ranging opposition from civil society, the media and opposition political parties. Then the party appeared to soften its stance — and even made a few concessions — as the Bill made its way through the National Council of Provinces (NCOP). Towards the end of 2012, the ANC backtracked on some its concessions and looked determined to push it through.
Murray Hunter, the then national co-ordinator of Right2Know, told me last year:
The reversals were an important indication to the public that, really, the problem of the Secrecy Bill hasn’t gone away. But… these two reversals pale in comparison to the broader problems in the Bill.
We have remaining problems of who gets to make secrets. Right now, even junior officers in the police and intelligence structures would still be given the power to classify information – for instance, station commanders and when you look at the crisis unfolding in Marikana, you see that this is not the kind of power we can entrust our police with.
The second issue is what gets to be made secret. There’s been a lot of changes (to the wording of the Bill) but when you look at the definition of national security – which is the justification for making secrets – you still see provision for economic, scientific and technological secrets, which really aren’t part of the strictly defined notion of national security.
The third is that whistleblowers and members of the public are all still subject to a variety of penalties – and that includes possessing information that has already been exposed or is in the public domain…”
The signs are that this controversial legislation is destined to be challenged in the Constitutional Court. But for all of us thinking that the Bill is unlikely to pass muster in the Constitutional Court if Right2Know and other organisations challenge it there, we need to remember that this legal route is far from ideal. It would be better to try fix a problematic Bill in Parliament.
While the police settled with Sunday Times journalist Mzilikazi wa Afrika in 2012 (he sued them for wrongful arrest), a scary new battlefront was opened in the war between the ANC the media: the Print Media Indaba — click here for more information on this.
For its part, the press reconsidered its role and responsibilities in the high-powered Press Freedom Commission led by former Chief Justice Pius Langa, which came up with these recommendations and a new press code. For myself, I felt the commission gave away far too much ground — read my thoughts on its findings here.
WHY DO WE NEED TO SPEAK UP FREEDOM OF 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 – OR SECRECY – 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 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.
Since then, however, the man who issued the original POI Bill, Ronnie Kasrils, has condemned the new iteration of the Bill. In an exclusive piece for the Daily Dispatch newspaper, Kasrils has done a detailed analysis of the new POI Bill, showing how it was changed from the version he issued. The new version betrays the intention of the original Bill, he says, which was to make state information more transparent and accessible.
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.
“How my Bill was betrayed” by Ronnie Kasrils (writing for Daily Dispatch)
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.
“POI Bill is veil for ANC secrets going back to 20 years” by Gill Moodie at Bizcommunity.
The report back from the Ministerial Review Commission on Intelligence comprising Joe Matthews, Dr Frene Ginwala and Laurie Nathan.
The POI Bill.
Parliamentary 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.
WHERE 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 maladminitration – 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.
Journalism.co.za 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”.
“Would Media Appeals Tribunal be constitutional?” by Pierre de Vos.
Tribunal a refuge for the corrupt, says (Cosatu’s) Vavi
The Press Ombudsman’s website, where it publishes all its rulings.
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 THE POLICE SWOOPED ON MZILIKAZI WA AFRIKA…
When the police arrested Sunday Times investigative journalist Mzilikazi wa Afrika outside the paper’s office on August 4, 2010 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 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 and big business has voiced its opposition towards these threats to media freedom. 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.
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 Press journalist has gun pointed at him in Mpumalanga in the same week of Wa Afrika’s arrest.
Japhet Ncube in City Press: “How freedom dies”.
News24’s dedicated “Media under threat” page.