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As noted in a recent Freedom House press release and in increasing coverage in South Africa and abroad, South Africa’s parliament, dominated by the ruling African National Congress (ANC) party, is under fire for two contentious proposals to regulate the media. The Protection of Information Bill currently before parliament dramatically decreases the threshold for the classification of information and establishes heavy penalties, including jail, for the leak or publication of official or classified material. The bill, an earlier draft of which was rejected because of concerns that it would create excessive official secrecy, also establishes broad barriers to accessing classified information. Among these barriers is the stipulation that appeals of the classification process must be directed to the very bodies that originally classified the information in question. Up for party review in September is a second measure that would create a Media Appeals Tribunal (MAT), a statutory body accountable to the parliament that would adjudicate complaints against media outlets, including the application of punitive powers. The ANC has defended the measures as necessary steps to encourage media responsibility, but critics in South Africa and the international community have denounced the proposals as fundamental threats to press freedom and have questioned their constitutionality.
As Freedom House’s press release states, South Africa moved from Free to Partly Free in the Freedom of the Press 2010 survey. This decline was due to an increase in hostile rhetoric toward the media on the part of government officials and government encroachment on the independence of the South African Broadcasting Corporation (SABC). The 2010 Countries at the Crossroads South Africa report further documents the ANC’s increasing sensitivity to media criticism, including a 2008 defamation lawsuit launched by ANC president Jacob Zuma over a political cartoon that depicted Zuma unbuckling his belt in front of a woman who is being constrained by ANC colleagues. A banner across the woman’s body suggests she is a symbol of the judicial system, the implication being that Zuma and other ANC leaders were “raping” that system. Zuma, now president of South Africa, charged not only the cartoonist, but also the paper that printed the piece and the paper’s holding company, in the US$700,000 lawsuit. More recently, journalist Mzilikazi wa Afrika was arrested without a warrant shortly after he coauthored an article on an illegal lease agreement in which the police national commissioner was involved.
The proposed measures raise a number of problems. Primarily, they represent a serious threat to the media’s traditional role as a watchdog of government and business. The provisions of the information bill and the MAT would prevent journalists from freely reporting on allegations of parliamentary corruption or exposing government incompetence. Predicting that the proposals will create a “society of secrets,” the African Democracy Institute argued that the threat of prosecution would encourage regular citizens to engage in self-censorship to avoid prosecution, an effect that would dramatically threaten freedom of speech. Apartheid-era laws and the 2009 Film and Publications act already discourage critical coverage of the government; the recent proposals might very well banish it.
The proposals also constrict access to commercial information. Speaking in favor of economic freedom, Business Leadership South Africa chairman Bobby Godsell declared that “the economic freedom on which business depends flourishes best when citizens are able to rely on an unfettered flow of information that is free from excessive government control and regulation.” He also expressed concern that growing international concern over the matter tarnished South Africa’s image in important international markets. The fact that the organization, which represents companies that pay 80 percent of corporate taxes in South Africa, has expressed concern that the ANC’s proposals raise “the prospect of a media answerable to political bosses” suggests that the ANC will face entrenched opposition beyond its traditional adversaries in the media if it continues to pursue these measures.
The outcry against the proposals has come from both foreign and domestic sources. South African journalists have come out strongly against the proposals. In an August 8 declaration, 36 print editors expressed deep concern over the proposed legislation and tribunal and appealed to the ANC to “abide by the founding principles of our democracy” by abandoning the proposals. The Federation of African Journalists, the African Regional Organization of the International Federation of Journalists, the Committee to Protect Journalists, and the International Press Institute have all condemned the proposals. Most recently, a group of South African writers, many of whom were silenced by apartheid censorship, declared publicly that the proposals threatened a return to the strict media controls of that era.
The ANC has launched a vehement defense of the proposals, claiming that they are necessary steps to increase accountability in the media. Under the current regulatory system, a press ombudsman fields media-related disputes. The ANC argues that this system is biased toward journalists, given that the current ombudsman is himself a former journalist, and that its lack of punitive powers renders its rulings inconsequential. The ombudsman has in fact issued strong rulings against the media, including ordering the publication of several prominent apologies, but the highly controversial ANC Youth League leader Julius Malema says that this is not enough. Claiming that the current system allows journalists to act as if they are above the law, he declared, “These people are dangerous. They write gossip and present it as facts.”
Zuma himself defended the proposals on the party’s website, where he characterized the media as inadequately reflective of the South African population, particularly its poor communities, and argued that it is dominated by biased commercial interests that incentivize salacious reporting. It is unclear, however, how the tribunal or the information bill would rectify any of the shortcomings he outlines. Critics have called on the ANC to prove that parliamentary appointments to the tribunal would be fair, to demonstrate that the current system is failing, and to provide statistics on the number of citizen complaints about the current media appeals system. Zuma’s case fails to answer any of these questions.
The question of monopolistic media ownership and its effect on representative media in fact figures prominently in media battles everywhere. A parallel to South Africa’s current debate can be found in a recent entry on Latin America that documents ways in which media wars can reflect political power struggles and the long-term challenges of updating legal frameworks for media in post-authoritarian countries. Cases in both Ecuador and Argentina show how ruling parties can use valid critiques of media ownership and bias to advance policies that considerably expand government control over the media. If the sizeable backlash against such policies in those cases is any guide, the ANC is likely to find its proposals mired in controversy for quite some time. If the ANC wishes to avoid the pitfalls that these and other regimes have suffered, it should identify ways to encourage media responsibility that do not involve extensive government (and party) control. A responsible and vibrant press is vital to democratic development. Occasionally offending the delicate sensibilities of politicians is a feature, not a bug.