16 years on, and South Africa’s media freedom starts to melt away

AS South Africa enters the 16^th year of the democracy that blossomed in 1994 with journalists celebrating the arrival of an interim constitution that entrenched media freedom and freedom of expression, those same journalists are now warily eyeing the government as it strays from those constitutional concepts.

Observers such as the New York-based Freedom House downgraded South Africa last year from  a “free’’ country to one ‘’partly free’’, the status applied to South Africa during the regime of the apartheid promoting National Party which imposed rigorous restrictions on the media and firmly controlled the state broadcaster.

When the African National Congress came to power in 1994 and scrapped many, though not all, of the restrictive laws, South Africa was upgraded to “free’’. Reporters without Borders has also downgraded South Africa from 33rd position in its freedom ranking to 38th, well below Namibia at 21^st.

The two institutions complained of attacks on journalists during the Football World Cup and about  the aggressive behaviour of senior members of the ruling African National Congress towards the press. It cited ANC Youth League leader Julius Malema expelling BBC correspondent Jonah Fisher from a news conference, calling him a “bastard” and “bloody agent.”  They also referred to ANC proposals to parliament to establish a statutory media appeals tribunal with powers to fine, or even imprison, journalists and the government’s intention to pass a bill restricting the disclosure of security information.

Freedom House also referred to several apartheid-era laws and a 2004 Law on Anti-terrorism which permits authorities to restrict information about the police, national defence force, prisons, and mental institutions, and compel journalists to reveal sources. It noted that there had been an increase in the use of court interdicts and gag orders by both governmental and non-state actors in recent years. Since 2005, the independent weekly Mail & Guardian had received at least three gag orders to stop reporting on corruption scandals.

Superior court decisions have also increased restrictions. A prohibition has been imposed on identifying people involved in divorce actions because it would identify their children. Another has banned the description of murderer being applied to a man who detonated a bomb in a bar killing several people because he had been granted amnesty by the Truth and Reconciliation Commission. This is the subject of an appeal to the Constitutional Court. In parliament, too, a new practice has developed among parliamentary committees of holding secret hearings.

There have also been more than a dozen defamation actions for damages totaling some R15-million (US $2.2-m) brought by President Jacob Zuma against newspapers and cartoonist Jonathan Shapiro (Zapiro) which act as a chilling warning to newspapers that Zuma prefers libel suits rather than taking an issue to the Press Council.

Freedom House also cites pro-ANC bias by the SABC and it allowing its internal auditors investigating a leak of information to the Mail and Guardian to search the offices of the broadcaster’s investigative reporting unit and subjecting the staff to lie-detector tests.

Journalists say a climate of secrecy has enveloped South Africa. When journalists, lawyers and others complain, government leaders dismiss it as hysterical comment. Journalists take the view that the leaders believe that all that is required to achieve freedom of the media is merely to state that these principles are being upheld.

Reporters have difficulty obtaining information from government departments, including the police. There is obstructionism and in some departments staff may release information only after a senior official has approved. Journalists posing questions are frequently requested to call back later but when they do, the official has disappeared and no one else is prepared to answer.

The major legal threat currently facing the media is the Protection of Information Bill now before parliament which was supposed to reduce the Draconian elements in the current Protection of Information Act. Journalists believe it has done the opposite.

The Bill fails to capture the principle that State information must be accessible, open and transparent unless its non-disclosure is reasonable and justifiable in terms of the Constitution. Although some of the worst provisions have been dropped, others including jail sentences of up to 25 years remain.

The thinking appears to be that the exercise of democracy in South Africa is decided by the ruling party’s inner councils on the assumption that centralized control is essential and is maintained by preventing the emergence of an open society with its ability to hold authority accountable.

There have also been the harassment and removal of journalists from certain court cases, the removal of pictures from photographers’ cameras, a ban on prosecutors giving information to the media, interference at the SA Broadcasting Corporation, which has included the banning of certain voices and programmes, and threats of the withdrawal of government advertising from critical papers.

The most serious conduct against journalists by the police has been their arrest at crime or incident scenes, often resulting in the reporter spending a night in the police cells. In the more than a dozen cases in the last year all the charges against them have been thrown out of court. The effect on reporters and photographers is, of course, chilling.

In addition to the Films and Publications Act which provides for certain publications to submit to pre-publication censorship and which the media is waiting to challenge in the Constitutional Court, there are the Key Points Act, the Protection from Harassment Bill – similar to the English law which hobbled the Guardian newspaper -- the Promotion of Equality and Prevention of Unfair Discrimination Act, the Protection of Personal Information Bill, the Regulation of the Interception of Information Act (Rica), the Public Service Broadcasting Bill and latterly a new Bill amending the conduct of Icasa (Independent Communications Authority of SA).

A serious deficiency in the progress of this legislation is the lack of consultation with the parties most likely to be affected. There is little consultation during the framing of a Bill or before its presentation to parliament. “Consultation’’ is then squeezed into limited public hearings in parliament.

Though the victims are in the first instance, journalists, the real victim is the public which is being denied information.