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By Herman Wasserman and Michelle Solomon
The arrival of democracy in South Africa brought with it unprecedented freedom for its media. No longer shackled by the myriad of laws it had to endure under apartheid, the right to freedom of expression had now been enshrined in its new negotiated Constitution. This guarantee notwithstanding, the relationship between journalists and the
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
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
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
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
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
Six weeks later, on November 11, the ANC announced that the Bill would be tabled in the
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
What has become clear in the debates so far is that the media will remain a contested space in a new democracy.
(Herman Wasserman is Professor and Deputy Head of the
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World - South Africa: Outcry and Protest | Global Viewpoint