May 2, 2012
Renewed Threat to Freedom of Expression in South Africa
Posted by Susan Farbstein
In the forthcoming issue of the New York Review of Books, Nadine Gordimer writes about two disturbing pieces of legislation under consideration by the South African parliament: the Media Tribunal and the Protection of State Information Bill (or so-called “Secrecy Bill”). Both would significantly curtail freedom of expression and access to information. Nearly twenty years after the end of apartheid, the acts are eerily reminiscent of the legal architecture that upheld the apartheid system itself—laws banning political parties, newspapers and books, and advocacy of political, economic, and social change.
If the Media Tribunal is established, journalists will be required to inform it about topics that they plan to investigate or write about; the Tribunal will then have the power to determine whether these subjects pose a threat to state security. However, under a new plan recently proposed by the Press Freedom Commission, a compromise seems more likely. The Commission has recommended a system of “independent co-regulation” between the public and press, without involvement of political parties or state officials, which may mitigate some concerns raised by critics of the Tribunal.
The Secrecy Bill may be the greater threat. It has received heavy criticism from South African civil society and media, and would impose significant prison sentences on those who expose corruption in government and industry. It lacks a public interest defense, meaning that journalists or whistle-blowers could be imprisoned for up to 25 years for sharing information deemed classified by the government, even in the face of a compelling public interest such as exposing corruption or malfeasance. In addition, the Bill will insulate various intelligence agencies from public scrutiny, ensuring that ordinary constitutional checks and balances will not apply to the intelligence services.
The powerful Congress of South African Trade Unions (COSATU), a traditional ANC ally, is strongly opposed to the Bill, as is Archbishop Desmond Tutu, who has said that it “makes the state answerable only to the state.” The final hearing on the Bill is set for May 17th. If passed into law, expect to see a Constitutional Court case challenging the Bill in the near future.
In many ways, this legislation contradicts the founding ideals that the ANC promised to a new South Africa. Should the Secrecy Bill be enacted into law, former Constitutional Court Justice Albie Sachs’ warning may prove disturbingly prescient: “There is no guarantee that somebody who is a freedom fighter, who is willing to sacrifice his life for freedom, will not violate the rights of others when he takes over power.”