The dramatic change in the occupancy of the South African Presidency has prompted journalists to keep a close watch on the new president, Kgalema Motlanthe, and his attitude towards the media.
Motlanthe supports the ANC plan to burden the media with a statutory Media Appeals Tribunal with, it is presumed, the power to impose fines or other punishment on media deemed to have offended against a code of conduct.
At a meeting of the South African National Editors’ Forum (SANEF) in Cape Town, in February this year, Motlanthe defended the tribunal. He said the print media’s self-regulatory process, through the Press Council and the Press Ombudsman system, was ineffective. “We feel sometimes that the Press Ombudsman is not robust enough,” he said.
The aim of the ANC’s proposed Media Appeals Tribunal, he said, was “to strengthen the self-regulation mechanism of the print media”.
Reader complaints against the print media are presently dealt with by a Press Ombudsman and Appeals Panel under a voluntary self-regulatory Press Council. The disciplinary procedures are similar to those of press councils in more than 60 other democracies throughout the world.
The maximum punishment is a reprimand, which could be accompanied by an order that the offending newspaper publish the findings and whatever else is demanded, such as a correction or apology. Unlike South Africa’s Broadcasting Complaints Commission (BCCSA), it does not have the power to impose fines.
Motlanthe described the media’s rejection of the tribunal and its claims that it would be an attack on media freedom as “over-reaction… as usual”.
The media have reacted strongly, having seen how such institutions operate elsewhere. Indeed, there are examples closer, in Zimbabwe with its punitive media legislation and Botswana with a proposed Media Practitioners’ Bill.
The media see the tribunal as an attempt by government to exert control over editorial content and have condemned it as such. Far from the tribunal “strengthening” the ombudsman system, it will destroy it. No publication will submit to the ombudsman when it would also be subject to a tribunal instituted by a big-brother bully waiting in the wings.
A changed ANC
In its 14 years in government, the ANC has changed quite dramatically from the party that proclaimed the necessity for media freedom in 1994. Then, as its members took occupancy of the civil service, calls by journalists were readily responded to with a smile and an informative answer.
Today journalists find many civil servants, especially in the Eastern and Western Cape, uncommunicative, frequently stooping to subterfuge to avoid answering questions. They often demand that the formal processes of the Promotion of Access to Information Act be followed, whose downside in such circumstances is the 30-day period before the information has to be supplied Ã¢Â€Â“ by which time the story is likely to be out of date.
In some government departments, in particular Defence and Health, the supply of information to the media has been curtailed. The Defence Department has decreed that all information be approved by the minister’s office before release, usually causing delay. The Health Ministry has strict rules on who releases information.
In the last couple of years the surliness of officials has been supplemented by the summary arrest of journalists and photographers by police at crime scenes in attempts to prevent reports or pictures of their activities from being published. The police claimed that the journalists interfered with their duties, but every case was thrown out for lack of evidence when the journalists subsequently appeared in court. These actions, accompanied by a night in a police cell, are intimidatory, but journalists tend to ignore the risk.
The president’s and deputy president’s bodyguards have on occasion removed photographers’ pictures from cameras for reasons best known to themselves.
These physical attempts at censorship Ã¢Â€Â“ seriously at variance with constitutional obligations binding on all organs of state to respect, protect, promote and fulfil the Bill of Rights, which includes media freedom Ã¢Â€Â“ have been accompanied by new laws restricting the media.
Anti-terrorism legislation Ã¢Â€Â“ the Protection of Constitutional Democracy against Terrorism and Related Activities Act (Act 33 of 2004) Ã¢Â€Â“ contains provisions that would turn reporters into police informers if they obeyed them. These are requirements that the police must be informed when a person becomes aware of, or even suspects, that someone is engaged in terrorist activity or houses such a person. The penalty for failing to do so is imprisonment for up to five years.
This kind of information comes to journalists from members of the public who want to avoid making an official complaint. Normally journalists would investigate and, if the allegation is true, publish. This law forces them to tell the police. There is also the likelihood of the reporter being forced to disclose the identity of the informant causing conflict of interest with journalists’ principled refusal to disclose confidential sources. This adds another dimension to the media’s ongoing fight with the authorities over Section 205, the “disclose your sources” law of the Criminal Procedure Act.
The Films and Publications Amendment Bill, ostensibly aimed at combating pornography, an aim supported by the media, has real dangers. It provides for classification of publications and broadcasts according to the age of the reader/viewer/listener and includes bans. Since 1962 the media have been exempted from these classification laws, but the Bill removed the exemption. Following media protests the exemption was partially restored for “bona fide newspapers” whose owners subscribe to the Press Ombudsman. That applies to some 400 publications, leaving some 2,000 news and other magazines, including foreign imports such as Time, at the mercy of the classification committees.
The material subject to classification is propaganda for war, descriptions of sexual conduct, incitement to violence and hate speech. This could, for example, prevent publication of US President George Bush’s reasons for the war in Iraq, seriously inhibit reports of rape trials or publication of sex education material and prevent the reporting of angry public demonstrations against poor service delivery. The hate speech provision is far broader than the constitutional restriction on such speech.
The Bill also contains the objectionable police informer requirement of the anti-terrorism law. The Bill has passed both Houses of Parliament and media organisations have subsequently appealed to the president not to sign the Bill into law, the journalists requesting it be referred to the Constitutional Court to test its constitutionality. That request will now land on the desk of President Motlanthe.
The media has protested to Parliament about the wideranging Protection of Information Bill, which is intended to protect state security. It is broadly framed, referring to harming the national interest while failing to refer to the protection of state security, so becoming almost all-encompassing. There is little indication that the protests are being heard.
The media and a range of civil society organisations have protested about a bill to give Parliament and the president, in conjunction with the speaker, powers to dismiss members of the governing board of the SABC in defiance of the view that the broadcaster should be free of political interference. This bill appears set to become law.
Another threat is posed by the National Key Points Act, originally introduced by the previous government to protect important and strategic buildings and institutions by prohibiting publication of their security measures. Now the ANC government is tightening up this law, invoking it on one occasion against newspapers seeking information about the high cost of a security wall around the Pretoria suburb of Bryntirion, which houses the Presidency and the homes of ministers.
The prohibition jeopardises reports of demonstrations outside these places because they could publish details about the response of security forces and their equipment. For journalists, the Catch-22 situation is that Key Points are not identified, so they won’t know when they are contravening the Act.
All these attempts at tightening control over the media are occurring against a background of a number of laws, leftovers from the apartheid and earlier regimes, but extending to at least one promulgated by the present government, that restrict the media. They range over security information, defence information, the procurement of supplies, laws relating to minors, witnesses, inquests and so on.
The ANC shows no inclination to review the legislation despite numerous requests for this to be done. A list of the laws and why the media regards them as unconstitutional have been drawn up, but despite promises from the authorities to take the matter further, the laws remain.
!_LT_EMLouw, a former editor of the!_LT_/EM Rand Daily Mail!_LT_EM, edits and publishes a weekly current affairs newsletter,!_LT_/EM Southern Africa Report!_LT_EM. He is a member of the media freedom committee of the South Africa National Editors’ Forum (SANEF) and is Africa representative of the World Press Freedom Committee.!_LT_/EM
This column first appeared in The Media magazine (November 2008).