The South African National Editors Forum (SANEF) has appealed to President Kgalema Motlanthe not to sign into law the Film and Publication Amendment Bill passed earlier this year by both houses of Parliament, despite fierce criticism from media organisations and free speech advocates.
SANEF made its last-ditch appeal while meeting Motlanthe at the weekend in Pretoria.
A government statement on the meeting says Motlanthe opened the meeting “by affirming the important role of media in our society and committing government to work closely with SANEF to resolve any differences that may arise”.
The statement adds that after “listening to presentations from both Government and the media, the President agreed to apply his mind before assigning the Bill into law. He would also seek legal counsel about the constitutionality of the Bill.”
The meeting also discussed SANEF`s opposition to what it considers other “media unfriendly laws”, with particular reference to compulsory disclosure of sources outlined in section 205 of the Criminal Procedures Act.
That section compels any witness to appear in court and give evidence in a criminal matter on pain of imprisonment. Currently only lawyers who have acted for the accused in the matter or the suspect`s spouse can claim privilege. Journalists want similar privilege to protect their sources and to protect themselves from harm, especially from criminals. They believe exception from Section 205 will serve the public interest by better allowing them to expose crime and corruption without fear or favour.
Government has to date been reluctant to agree to this although it has in the past undertaken to only call journalists to the witness box as a last resort.
“It was agreed that a colloquium would be fast-tracked by GCIS [Government Communications and Information System] and SANEF on the matter and the Minister of Justice and Constitutional Development would actively seek other means to allow SANEF to engage the legislative process.”
The Department of Home Affairs that piloted the amendments through Parliament says it is necessary to better fight child pornography and juvenile access to pornography. But SANEF and the Freedom of Expression Institute (FXI) have said that it goes too far and introduces a form of prepublication censorship that not even the apartheid government had dared to impose on newspapers. They add the amendments not only seek to regulate sexual content but also speech inciting war or hatred.
This could result in newspapers and other journals having to subject reporting, opinion and even letters on ongoing conflicts to the Film and Publications Board for prepublication approval. Failure to do so would be a punishable offence.
Other “media unfriendly” laws include the Defence Act, National Key Points Act and Protection of Information Act.
Of the latter, the FXI`s legal expert, Melissa Moore has said that a new draft of the law, recently set aside by Parliament until next year, appeared to only “pay token respect to the tenets of the Constitution of the Republic of South Africa, but leaves much to be desired in terms of operational efficacy and adherence to the doctrines of transparency and openness.
“The draft Bill has sweeping provisions which grant rights to political functionaries to ‘classified` information. The nett upshot of this is a negation of the public`s right to know and [the Bill] is exceptionally subjective.”
Moore adds that the Bill amounts to an “attempt to ensconce political hegemony” and “is nothing more than an extension of the invasion of individual rights”.
Former Intelligence minister Ronnie Kasrils and retired intelligence professional Barry Gilder HYPERLINK have argued the opposite and say the Bill will lead to greater openness and transparency, not less. The Intelligence Services ministry has also included a public interest exemption clause in the latest version of the Bill to cater for journalists and whistleblowers, while earlier drafts of the Bill already criminalised the use of secrecy provisions to hide government or official incompetence or misconduct.
National Key Points
The FXI is also concerned about the National Key Points and Strategic Installations Bill that will amend the National Key Points Act of 1980.
The law, recently transferred from defence to police jurisdiction, is designed to protect places and areas deemed to be of strategic national interest against sabotage or other forms of attack. But in the FXI`s view, the Bill “suffers from many of the defects of the original Act.
“In terms of the anti-disclosure provisions in the Bill the media may not publish any news relating to designated National Key Points (NKPs) whatsoever unless the publication is authorised by the Minister [of Safety and Security].
“This drastically curtails the right to report on political demonstrations, such as environmental and other protests that may occur in the vicinity of a NKP. This is particularly relevant in the current climate of vigorous debate between industries and communities living in the vicinity of factories.
“These communities are often embroiled in disputes over environmental issues and occupational hazards, often spilling over into protest and confrontation. If such a protest is technically illegal because it violates the Regulation of Gatherings Act and if the protest is deemed to disrupt the NKP, albeit marginally, then every protester will be committing an offence in terms of the Bill.
“The sentence on conviction is also drastic, such person being liable to a fine not exceeding R1 000 000 or to imprisonment for a period not exceeding 20 years or to both such fine and such imprisonment,” the FXI says.
“The FXI has conducted exhaustive research into the ubiquitous violations of the Gatherings Act by the State and the fact that many of the approximately 1000 protests nationwide that are annually deemed ‘illegal` are in fact perfectly legal. Such protests in the vicinity of NKP will most likely trigger the extremely punitive penalties.”
“From FXI`s interviews with local communities and environmental organisations, it is clear the State and companies are using the Act to avoid communicating information and news regarding these issues. Furthermore, this anti-disclosure provision enables authorities to keep the public in the dark about the kind of place that is a likely target of a terrorist attack or about the direction and magnitude of any threat against a NKP.”
“There are several examples in recent years of the State, or State-owned companies using the Act to crush labour protests or media investigation into State use of public funds. The 2006 attempt by the National Ports Authority to declare ports as national key points bore all the hallmarks of such secretive behaviour; Also in 2006, the Department of Public Works invoked the Act to prevent information from being disseminated to the public about an alleged R90 million wall around President Mbeki’s official residence in the Brynthirion government estate in Pretoria.
“Many of the NKPs in South Africa are also plants or companies at the centre of industrial action and general protest actions from time to time, such as in 2004 when members of the South Africa Transport and Allied Workers Union went on strike at the Johannesburg and Cape Town airports over a wage dispute.
“Attempts were made in 2004 to invoke the Act to prevent protest action during a pending strike at the SABC; and in 2002 the Ministry of Defence decided unilaterally to extend the area of the NKP around the Engen Refinery in Durban, resulting in encroachment upon people’s houses and the local mosque. The effect of this was that community people attempting to take air samples on the fence line of the Engen Refinery could be convicted under the Act. The Ministry of Defence, in a letter to a local industry, stated that environmental information must be regarded as ‘extremely sensitive`,” the FXI charged.
“The Bill needs to be properly reconciled with both the Gatherings Act and the Promotion of Access to Information Act. But even if these conflicts are resolved, protection of information remains the sting in the tail of the Bill, offensive to media freedom and the public`s right to know about activities at NKPs”.
The FXI does concede the Bill contains “some progressive elements” such as “attempts to fetter the Minister’s discretion to declare a NKP.
“There are some restrictions on disclosure in the Bill that are more precise and justifiable, for example the publication of information about security measures in force at a NKP or concerning the composition, duties, movements and methods of security personnel who operate there. If the legislature amends and restricts itself to such prohibitions instead of putting a blanket ban on disclosures, the intrusion on freedom of speech, information and assembly would be negligible and defensible,” the free speech watchdog said.
The FXI has similar concerns about the Defence Act.