Vivienne and Allan. Last, but most importantly, thank you to dear Nigel for your optimistic disposition, wise counsel and consistent encouragement to fight to maintain a free press, freedom of expression and access to information. Now Alex and Ash follow that example and lend the same kind of support to the same issues.
PREFACE
I undertook this work from the position of a practicing journalist. It is a work of advocacy that grew out of my 2010 PhD thesis in the Department of Political Studies, University of the Witwatersrand. I have also added my own experiences from time to time. The particular standpoint ab initio is in support of a press free from party political interference and control. I have always worked in the print media, and therefore I do not, and cannot, hide under an impossible cloak of detachment and objectivity. My position is that journalism makes a contribution to the deepening of democracy in South Africa and my focus is on the print media’s role of public watchdog, holding power to account.
This book also examines the view that journalism in this country is shabby, unfair and irresponsible and therefore it needs a statutory media appeals tribunal. It challenges the Protection of State Information Bill (known as the ‘Secrecy Bill’) under which journalists would suffer severe penalties including jail sentences for being in possession of a classified document. In addition, disclosures of classified information to reveal criminal activity will be criminalised. Further deliberations on the Bill were postponed to September 2012.
The ANC’s lead in a noble fight in exile, and inside the country, for liberation towards a democratic South Africa, can hardly be disputed. However, the irony is that the fight had to be strategically undertaken from exile, largely in secret, because of the nature of the organisation and its military component, and because it was banned inside the country. In this analysis of the relationship between the ANC and the media in South Africa, I’ve drawn a picture of highly contentious politics in the ANC vis-à-vis its support for the Secrecy Bill and a statutory media appeals tribunal (notwithstanding some backing down in 2012), a portrait of an organisation virtually turning against its own project of developing a radical democracy. We should also note the new General Intelligence Bill, which consolidates and centralises the power of a security regime in the making, giving more to the State Security Agency (although this bill has not been dealt with in this book).
Why was the ANC seemingly becoming anti-democratic? Was it because large sections within it believe that the Constitution, punting freedom of information, free speech and media, was a series of compromises which many regret today, hence talk of a ‘second transition’ in the ‘National Democratic Revolution’?
Significant developments regarding the media appeals tribunal and the Secrecy Bill took place in 2012. In addition, a court date was set (October 2012) for the lawsuit against Zapiro by President Jacob Zuma for the ‘Lady Justice’ or ‘rape of justice’ cartoon, with an emphasis on the matter of the president’s ‘dignity’ – the same discourse as is evident in the reasons for establishing a statutory media appeals tribunal. There were four big developments to do with print regulation, all confusingly tripping over each other. First, starting in January 2011, the Press Council of South Africa held public hearings around the country, to hear what people felt about the press. The subsequent new Press Code was formulated with more stringent criteria for ethical journalism. Second, in July 2011, the South African National Editors’ Forum (Sanef) and Print Media South Africa launched the Press Freedom Commission (PFC) to examine different systems of regulation around the world, and to hear via oral and written submissions what South Africans had to say about press freedom. Third, in September 2011 Parliament held an indaba into diversity and transformation in the print media, at which ownership, transformation and diversity were all collapsed and conflated into one convoluted bundle. The event signalled the start of the imposition of the media appeals tribunal, which would ultimately see the media controlled by political commissars. However, by June 2012, a media charter became the flavour of the month according to the Parliament communication committee. Fourth, the PFC held public hearings in January 2012, at which the ANC’s secretary general, Gwede Mantashe, the head of communications, Jessie Duarte, and the spokesperson, Jackson Mthembu, made passionate appeals for a statutory media appeals tribunal. In their argument such a body would ensure that the media made fewer mistakes, would be more ‘accountable’ and would observe individuals’ right to ‘dignity’, referring to an aspect of the Constitution which jostles alongside freedom of expression. They did this with a new twist: they argued for ‘independent’ regulation by a body, which must be statutory, like many Chapter nine institutions (state institutions set up to safeguard constitutional democracy, established in terms of chapter 9 of the Constitution) in a ‘parliamentary oversight’ process. The contradiction at best, and obfuscation at worst, about ‘independent’ but statutory was not lost on many of us who attended the hearings and made submissions too (I made a submission on behalf of the M&G Centre for Investigative Journalism, amaBhungane, on why self-regulation was the best system for print media). In a nutshell, it appeared that the ANC wants the media to ultimately report to Parliament, where the majority of members are ANC. Then, in an interesting turn of events, on 25 April 2012 the PFC announced its review of regulation of the press: ‘independent co-regulation’ which, on the face of it, appeared to be a political compromise for what the ANC desired. The ANC said that it ‘welcomed’ the PFC report and that it was ‘a step in the right direction’. The report said that there were ‘perceptions’ in the public mind that self-regulation did not work, and that the system favoured journalists. In fact, this is an ANC bias and the most recent statistics of the ombudsman’s rulings over the past three years, 2009-2012, showed that the majority of rulings, about sixty per cent, went against the press and in favour of the complainant.
As we head towards the ANC’s elective conference in Mangaung in December 2012, the control of the media could still be on the ruling party’s list of priorities. The argument in this book takes its cue from the Declaration of Principles on Freedom of Expression by the African Commission on Human and Peoples’ rights: ‘Effective self-regulation is the best system for promoting high standards in the media’. If a statutory body to control the media were to be introduced in South Africa it would signify significant closures for freedom of expression, media freedom and therefore democracy, as has occurred in a number of African countries after colonialism. However, the idea of a media appeals tribunal seems to be in abeyance now, with the acceptance of the PFC report, although it can only be completely off the table if the conference in December 2012 rescinds the Polokwane 2007 resolution to investigate it.
And if the Secrecy Bill was passed in the unamended form it would create a fearful and secretive society, one that hides corruption from scrutiny. Whistleblowers would think twice before handing over documents for exposure or publication. The average citizen’s access to information would shrink. A tame media would censor itself, while bold journalists would go to jail. There wouldn’t be less corruption but you would read less about it.
The Secrecy Bill has been a huge drama in public life over the past two years. After numerous postponements the Bill was passed by the National Assembly on 22 November 2011, with 229 yes votes, 107 no votes, and two abstentions. It was then referred to the National Council of Provinces (NCOP), the second tier of parliament, for further consultations, public hearings and submissions. The NCOP conducted hearings around the country in the first few months of 2012. The bill has to be passed by the council before it proceeds to the president for gazetting. The public participation process threw up some surprises for the ANC. Citizens from the Cape Flats, for instance, questioned the ANC about service delivery and asked pointed questions about what the party wanted to hide. Forewarned by this attack, the ANC in the Eastern Cape bussed in supporters and the NCOP tried a new tactic. Every time anyone said ‘Secrecy Bill’ he or she was shot down, and told to address the issue and, further, not to mention service delivery. Reports from participants in the Eastern Cape hearings, as well as in many of the other provinces thereafter, questioned why the government was prioritising the Bill at this time. Given this mixed bag, it was rather perplexing when Parliament issued a statement: ‘2 February 2012: Bill gets resounding approval’ and a careful reading of the statement does not explain
