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Menings | Opinion > SeminaarKamer | Seminar Room > English > Mini-seminars

The Present is Another Country

Peter D McDonald - 2010-09-13

It seems it began with justice and constitutional minister Jeff Radebe. In a speech titled “Democracy and Media Freedom”, which he gave at the 2010 Sanef Nat Nakasa Award dinner in Johannesburg at the end of July, he reassured “members of the Fourth Estate” that “as government we will not treat you the same way the apartheid regime treated Nat Nakasa. In other words, we will not enact laws detrimental to your cause.” After that the ghosts of the past were back, and they have continued to haunt the most recent debate about the future of media freedom, and the freedom of expression more generally, ever since.

The Cape Times led the way, declaring that the proposed Information Bill “should join apartheid legislation in the dustbin of history” (5 August, p 9). The Pretoria News and Cape Argus were more emphatic. Quoting former intelligence minister Ronnie Kasrils, the first announced that the Bill “shows a desire to maintain apartheid-era secrecy” (20 August, p 3), while the second simply said, “Media laws stink of apartheid regime” (25 August, p 19). Having firmly established itself in the national headlines, the historical comparison then became a feature of the international response as well. After The Australian claimed “Attack on press ‘beats apartheid’” (23 August, p 16) The Sunday Times (London) reported: “Zuma gags media with ‘worse than apartheid’ bill”, while The Independent (London) claimed “Zuma’s media censorship ‘is like going back to Apartheid era’” (24 August, p 20).

No one can deny that invoking the spectre of apartheid censorship in this context is an effective polemical move. After all, the point of these eye-catching headlines is not to draw a judicious historical parallel but to mobilise public opinion and prick the conscience of those in power. Yet for all its arresting force, resurrecting this particular aspect of a complex past brings risks of its own. At worst, it fuels cynicism, Afro-pessimism, and a host of other dubious feelings that lead an active subterranean life across the globalised contemporary mediascape. At best, it raises an obvious question: Is it really the case that the latest threats to the freedom of expression constitute a return to apartheid censorship or worse?

I have my doubts. For one thing, as Christopher Merrett demonstrated in A Culture of Censorship (1994), that particular monster (“apartheid censorship”) had a number of heads. While the government-appointed Publications Control Board scrutinised everything from books and films to T-shirts and novelty toilet seats, the minister of justice had powers, initially under the Suppression of Communism Act, to ban individuals and organisations; and in later years, the government used special emergency measures, invoking the interests of “national security”, to threaten and in some cases suspend the vibrant anti-apartheid press. And this is only the beginning. By most counts there were around thirty statutory instruments at the regime’s disposal for curbing or suppressing freedom of expression. Have things really deteriorated to that extent? While there are undoubtedly grounds for serious concern, we have to acknowledge that for all the setbacks the past sixteen years have also seen the emergence of a genuinely innovative tradition of thinking about the freedom of expression, as the Film and Publication Board’s 2002 ruling on Salman Rushdie’s The Satanic Verses and numerous constitutional court decisions attest. Like all such traditions, this one can, of course, easily be eroded.

The comparison with apartheid censorship is also questionable because it blurs at least one vital difference between the print past and our multimedia present. In the apartheid era the freedom of expression, or what remained of it, was modelled on the tradition of English liberties. It was essentially the space left over once you took into consideration all the regime’s taboos, relating to, among others, obscenity, blasphemy, race relations, prisons, defence, terrorism, riotous assembly and “the safety of the State, the general welfare or the peace and good order” (to use the language of the apartheid-era Publications Act). By contrast, under section 16 of the Constitution the freedom of expression is now guaranteed as a right, imposing an obligation, first and foremost on state bodies, not just to uphold it but to encourage its exercise across all contemporary media. The only areas of public discourse to which this positive and active protection does not extend are “propaganda for war”, “incitement of imminent violence”, and “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes an incitement to cause harm” (section 16).

So there are reasons for being sceptical about invoking the spectre of apartheid censorship. Yet there can be little doubt about the gravity of the present situation, as a multitude of national and international legal, media and civic groups, including over 500 South African writers, have firmly pointed out. In the past week the respected US watchdog Freedom House, which did much to expose the abuses of the apartheid years, has added its voice to the chorus of protest. Having categorised the press in South Africa as “Free” since 1994, its newly published annual report for 2010 has for the first time downgraded it to “Partly Free”.

All this confirms that the insecure civic space for which “freedom of expression” is the shorthand, and which is now at once local, national and supranational, the space in which citizens can reflect on themselves and the world as they find it unimpeded by the sternest political pressures requires “eternal vigilance” on the part of its guardians if it is to survive. Yet, as the latest threats suggest, simply rehearsing this old mantra is never enough. New situations call for new forms of vigilance. In the apartheid era the threats were self-evident and, in any case, part of a manifestly unjust and undemocratic political order. Now they are more subtle, not least because they are being presented by a democratically elected government, which operates under one of the most progressive constitutions in the world, as being vital to the survival and security of the state. This is the ostensible object of the Information Bill, though it pointedly and oddly links these legitimate security concerns to, among other things, “the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound international relations” (section 11). The Bill, in effect, promotes secrecy not just as a security matter, as is the case in many polities around the world, but in the name of justice, democracy and the economy.

As this suggests, the latest legislative proposals require close reading, which is just one of the ways in which the current situation demands a new kind of vigilance.

Consider some of the Bill’s other anomalies. As section 42 makes clear, it explicitly addresses one of the concerns critics have raised. It makes it an offence for “any person”, which in this context means primarily any agent of the state, to classify (ie suppress) information in order, among other things, to “conceal breaches of law” or “prevent embarrassment to a person, organisation or agency”. This sounds reassuring until you notice that the punishment for contravening this section is a fine or a maximum prison sentence of three years. By contrast, the sentence for, say, an investigative journalist who exposes information classified as “top secret” is a maximum prison term of 25 years and there is no option of a fine. The punishments for disclosing information officially deemed “secret” or “confidential” are less severe, though they all still involve prison sentences.

Tellingly, the Bill is silent about whether or not any journalist finding herself in this situation could mount a public interest defence, an omission that needs to be set alongside the provisions granting the minister of security, or her/his designates, extraordinary powers to determine what information may or may not be suppressed in the “national interest” (section 11). Again this catch-all refers not just to “the survival and security of the State” but to “all matters relating to the advancement of the public good” (section 11). Since it is, by implication, the agents of the state, not journalists or civic groups, who determine what constitutes the “public good”, this authorises officials to suppress more or less anything. It is difficult to see how this is compatible not just with Radebe’s assurances about not enacting laws that threaten the “Fourth Estate”, but with the constitutional commitment to “an open and democratic society based on human dignity, equality and freedom” (section 36).

That new forms of vigilance are required is equally clear in the case of the proposed Media Tribunal. In this instance, harking back to the apartheid era distracts from the more recent past, which may be more relevant. To trace the most pertinent history here we need look only to 2006 when the amendment to the Publications Act (1996) was being fiercely contested. In its first version that Bill, which was widely condemned by, among others, Sanef, Pasa and the FXI, subjected all publishers, the press included, to what could in the most extreme cases amount to a form of pre-publication censorship. This related to materials detailing certain forms of “sexual conduct” or those that could potentially be deemed to fall under any of the three categories of expression that are not constitutionally protected (“incitement of imminent violence”, etc). However, after a concerted campaign, the print media groups succeeded in winning exemption for themselves. As the amended Act, which came into force last year, now puts it, the requirement to submit materials prior to publication does not apply to any “bona fide newspaper ... recognised by the Press Ombudsman” (section 19). It is now only publishers (and film distributors) who face the threat of a fine or a prison sentence of up to five years if they fail to comply with the pre-publication rule. From today’s perspective it is tempting to wonder if the government’s latest bid to extend the powers of the state by, in this case, challenging the tradition of journalistic self-regulation and setting up its own Media Tribunal, is not linked to that relatively recent failure.

In the end it is not the bogey of apartheid censorship that is most relevant to the current debates, but the past as Radebe saw it on the occasion of the Sanef Nat Nakasa Award in July. There can be no doubt that the ghosts of Nat Nakasa (1937–1965), Albert Luthuli (1898–1967), Steve Biko (1946–1977), Es’kia Mphahlele (1919–2008), and now, sadly, Lewis Nkosi (1936-2010), and all the other champions of the freedom of expression will be there when Parliament comes to consider the ministry of intelligence’s latest legislative proposals. They will be there because, as they all insisted, the freedom of expression, far from being the preserve of an intellectual elite or the exclusive property of a particular political or cultural tradition, is an inalienable part of human dignity and a cornerstone of democracy.

Peter D McDonald

Useful links:
 http://www.anc.org.za/docs/discus/2010/mediad.pdf (ANC discussion paper on MAT)











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