Irrespective of whether South Africa actually implements the most draconian parts of state secrets legislation now under consideration, the media in the continent's most open democracy already feel under threat. The prospect of 25-year jail sentences for journalists publishing "classified" information has galvanized disparate news outlets and journalists groups to work together like never before.
The ruling African National Congress, sensing popular discontent over its record on unemployment, housing, and basic services, has proposed two measures that would rein in a press that has been making its politicians look bad by rooting out corruption stories. Journalists and civil society leaders call the legislation overly broad and badly written. They say it will effectively criminalize investigative reporting, prevent ordinary citizens from obtaining basic public information, and allow authorities to classify documents to avoid political embarrassment rather than safeguard national security.
The Protection of State Information Bill has lost some of its most restrictive features since it first surfaced in 2008. But the version that passed the lower house of parliament in November, where the ANC holds a nearly two-thirds majority, still gives government the power to declare almost any information secret--hence its popular name, the "secrecy bill."
Nobel laureates archbishop Desmond Tutu and writer Nadine Gordimer have blasted the bill. The Nelson Mandela Centre of Memory has picked apart its legal inconsistencies, both with the country's internationally admired constitution, which guarantees freedom of expression, and with other freedom of information statutes. Even the ANC's powerful ally, the Confederation of South African Trade Unions, came out against the bill, which would curb union members' rights to act as whistle-blowers against incompetence and corruption.
Press freedom advocates are also concerned about the international effects of any legislation, particularly in Sub-Saharan Africa where authoritarian leaders may use the South African experience as a pretext to block or even roll back media reform in their own states. "I tell the ANC whatever we do here has a very big impact on the continent," said Faith Pansy Tlakula, the African Union's special rapporteur on freedom of expression.
The bill has emerged against the backdrop of political infighting within the ANC, which is facing mounting criticism and street protests by groups frustrated with its failure to deliver on promises to improve the economy and provide housing, health, and education services. Unemployment is running around 25 percent, and is higher still among youth.
ANC frustration with media criticism starts at the top, with President Jacob Zuma, who has brought defamation suits against a number of publications and leading cartoonist Jonathan Shapiro, known as Zapiro. Zuma runs for re-election in a year's time. The ANC also charges the media, which it perceives as still largely owned and staffed by whites, with failing to transform quickly enough to reflect South Africa's black majority.
"The hostility to media you get in government circles is deep," said Anton Harber, professor of journalism at Witwatersrand University. Like many journalists, he is concerned by another ANC proposal to set up a statutory Media Appeals Tribunal to handle complaints against the press. The tribunal would answer to the ANC-dominated Parliament and effectively undermine the current self-regulatory Press Council of South Africa.
"The Protection of Information Bill is the storm that's making landfall right now; the cold front parked out in the ocean is the Media Appeals Tribunal, which will be upon us in the New Year," said Nic Dawes, editor of the weekly Mail & Guardian, one of the country's foremost investigative newspapers.
"All this is going on because the ANC has a crisis of legitimacy. It has an internal crisis of legitimacy. It can't govern itself; it's torn apart by factionalism and greed. ... Then it has a crisis of legitimacy with its electorate who see people driving past them in very big, smart cars and living nice lives, and are angry about it," Dawes said.
"The ramifications of this are bad," said Tuwani Gumani, general secretary of the Media Workers Association of South Africa, or MWASA. "The ANC has said the only opposition we have are the media."
Barney Mthombothi, editor the Financial Mail, agrees. "We are acting as the opposition because the country doesn't have an effective opposition. ... Most of the corruption that comes out and actually embarrasses the government comes out because of media investigations."
The ANC's casting of the media as its only opponent has been long in the making, according to editors across the print and broadcast spectrum. Freed of the censorship regime of apartheid, journalists enjoyed unprecedented freedom and access to information under the presidency of Nelson Mandela. But these freedoms began to be curtailed by Mandela's successor, Thabo Mbeki, and this trend has accelerated under Zuma.
"A strong contingent within the ANC wants the Media Appeals Tribunal," said Mark van der Velden, editor of the domestic news agency, SAPA. "It could be even more destructive of press freedom than the secrecy bill. ... It is another instance of the ANC narrowing the space for debate."
Journalists argue that unlike the secrecy bill, the tribunal is aimed directly at them and could lead to the registration of news outlets and eventually the licensing of journalists; in order to fine or sanction reporters in the expanding universe of online publications, after all, the statutory body would have to define who is a journalist.
"The Media Appeals Tribunal is our far biggest threat and we are nowhere near prepared for that," according to William Bird, director of the Media Monitoring Africa. He describes the ANC's motivation for silencing critics as: "'You need to punish these people.'... They will justify it on the basis of 'you impugn my dignity', and the whole basis of apartheid was about fundamentally violating people's right to dignity. That right trumps the media's right to be able to tell the story even if it's factual."
Many free speech advocates have made the comparison with the apartheid era.
"The ANC sees that it can do what apartheid did, which is control information," said MWASA's Gumani. "The secrecy bill has crystallized everything that everyone hates about the ANC: arrogance, abuse of power and the impunity that goes with it."
However, voices are now being raised among some working journalists cautioning against the comparison. "It's very seductive, very easy to make the comparison to apartheid (but) it's very counterproductive," said Dawes of the Mail & Guardian. He argues that journalists should focus on how the press was not free then and should guard against losing the freedoms it has since acquired. The argument should be that "to force on us a choice between our professional ethics, our duty, our vocation and the law is something that should never happen in a democracy. We are not saying this is like apartheid. We are saying we remember that pain."
Press freedom advocates have also started urging the civil society and political coalition against the secrecy bill to focus less on its impact on the media and more on its effects on ordinary South Africans in order to build broader political support.
"The bill is not just about journalists but about my mother not being able to get information from a government department," said Elston Seppie, executive director of the Freedom of Expression Institute, or FXI. "People want to engage politically with the state. It is critical to move beyond just thinking about the bill as a media-restricting measure, but on its impact generally on human rights."
Opponents say the bill will lead to the classification of politically embarrassing information and frighten potential whistle-blowers and confidential sources. In theory, any journalist who is given a confidential document by a source is supposed to hand it to the authorities or face at least five years' jail for possession, thereby endangering the source.
"The securocrats are going beyond themselves in wanting secrecy around things that don't need to be kept secret," said Moegsien Williams, editor of The Star. The chilling effect of this is already apparent both on journalists and the holders of information upon whom they rely.
"Even though it's not enacted, you've got that shift now," said Bird of Media Monitoring Africa. "Instead of how [officials] can enable access, it's about how they can prevent access."
ANC members say both the bill and the tribunal are needed to combat spies and lies. ANC spokesman Jackson Mthembu defended the bill as a reform of an apartheid-era law and safeguard for state secrets against unidentified foreign spies. "There is no intention to curb media freedom in this country," he said. The proposal for a tribunal arose because self-regulation was not working, he added, and newspapers were printing false stories about ANC members. He called the Press Council a "toothless dog" and said its complaints mechanism had to be "significantly strengthened" to protect citizens' constitutional right to dignity, otherwise ANC members would continue to push for the proposal to be turned into legislation. He rejected the accusation, however, that a statutory tribunal meant government control.
"We have never called for state regulation of the media," Mthembu said.
The Press Council counters by saying that aggrieved readers have recourse in civil court or through its own appeal procedure, which received 240 complaints in the first 11 months of this year compared with 213 in 2010. "Two thirds of complaints brought are upheld," according to Press Ombudsman Joe Thloloe.
The press freedom climate is certainly sunnier than elsewhere in the continent. There are no journalists in jail, and none have been killed here since the early 1990s. Yet reporters, particularly broadcasters, have complained of increasing harassment by police preventing access or filming. Journalists say they have documented some 20 cases in the past two years of reporters and photographers being detained, sometimes overnight, for interfering with police in the execution of their duties, but prosecutors did not press charges. CPJ wrote to Zuma in 2010 about the arrest and ongoing prosecution of Sunday Times journalist Mzilikazi wa Afrika over an unpublished story critical of the police.
Editors doubt that the most restrictive elements of the secrecy bill will make it to the statute books. Many believe it will be amended during its passage through the upper house, the National Council of Provinces. Nevertheless, the final version, which must be signed by Zuma, will still be problematic especially if it does not include the media's demand for a public interest clause that would allow journalists to argue that the public's right to know supersedes the need for secrecy in any given case. That is why they pin their hopes on the 11-person Constitutional Court. Zuma has recently appointed a new chief justice to the bench but his vote carries the same weight as that of the other judges who have so far proved independent. They may strike down the bill as being in violation of Article 16 of the South African Constitution, which guarantees freedom of expression.
"I think that whatever [the ANC] comes up with can be taken to the Constitutional Court and I think we can win," Financial Mail editor Mthombothi said. Media lawyer Dario Milo noted that the court has not always found in favor of the press, but with the "broad provisions on criminality in its current form the court will likely strike it down." Nevertheless there is still a risk, and several editors told CPJ privately that any decision could be close.
An appeals tribunal is still some way from seeing the legislative light of day, and some opponents think it can be headed off. Williams, editor of The Star, is hopeful. "The ANC are democrats. There is no proof they want to roll back the constitution," said Williams, who recommends the press keep engaging the ANC leadership. Others warn against complacency. "This is a time for action," special rapporteur Tlakula said. "The Media Appeals Tribunal scares me."
CPJ is conducting a fact-finding and advocacy mission to South Africa. CPJ Chairman Sandy Rowe and Deputy Director Robert Mahoney met with a wide cross-section of local media, as well as press freedom advocates, civil society groups, academics, lawyers, and members of the African National Congress.