Media statement for immediate release

The state of freedom of expression in South Africa and beyond: FXI statement for International Press Freedom Day, May 3, 2002.

7 pages

The Freedom of Expression Institute (FXI) is a South African-based non-governmental organisation dedicated to opposing censorship, and promoting the rights to free expression and access to information. Up to this point, the main focus of its work has been in relation to South Africa. However, it is clear that freedom of expression cannot be promoted successfully at the national level alone. Globalisation has meant that events in one country can have a profound impact on another. Also, the increasing globalisation of the media, especially the news media, has meant that when news in one part of the world is censored, it affects us all. It is in this spirit that the FXI commemorates International Press Freedom Day: a spirit which says that efforts to achieve freedom of expression must be both national and global.

The global freedom of expression environment was altered fundamentally by the events of September 11 in the United States of America. The resulting ‘war on terrorism’ has also been fought on the level of information, where immense pressure has been put on journalists to serve propaganda ends. There has also been a rush on the part of many countries to pass ‘anti-terrorism’ legislation, some with severe implications for the freedoms of expression, association and privacy.

For example, the United States passed a law to make it easier for the authorities to investigate people suspected of terrorist activities. The Anti-Terrorism Act of 2001, give investigators the power to obtain telephone numbers dialled by a suspect, as well as e-mail and internet addresses. The Act also opens the way for investigators to use the ‘Carnivore’ software, which enables them to intercept information on the usage of the internet, even from innocent users who are not under investigation. Similar moves are reportedly taking place in Canada, Australia, France, and Jordan. An EU-wide definition of terrorism has also caused concern, with the International Federation of Journalists pointing out that the definition is so broad that it could even cover anti-globalisation demonstrators.

South Africa has also followed suit by fast-tracking anti-terrorism legislation, as well as the Monitoring and Interception Bill, and buying surveillance software to be used on the internet. Very /..2 ____________________________________________________________________________________________________ EXECUTIVE COMMITTEE: Salim Vally (Chairperson), Kate Skinner (Deputy Chairperson), Raymond Louw, Tshepo Rantho, Prishani Naidoo, Nkopane Maphiri, Daniel Hutchinson, Nicholas Dieltiens, Ahmed Veriava. EXECUTIVE DIRECTOR Jane Duncan OFFICE ADMINISTRATOR: Pinky Magau COMMUNICATIONS OFFICER: Scotch Tagwireyi little public debate has taken place about the implications of these developments for the privacy and freedom of expression of South African citizens.

The heightened conflict in the Middle East has also seen freedom of expression in the firing line. The events following September 11 saw a virtual media blackout of the killing of Palestinian civilians. The free flow of information was further frustrated by the Palestinian Authority, by banning interviews with Palestinians on the September 11 attacks, and since October 9 last year, banning access to Gaza of foreigners (including foreign journalists). Both international and Palestinian journalists were censored.

The Israeli authorities then targeted the media, especially independent Palestinian journalists, who do not have the support of large international media organisations behind them. Israel has imposed a ban on reporters covering the military intervention in the West Bank town of Ramallah, and declared it a closed military zone. The Foreign Press Association in Israel protested on the basis that they were unable to cover a major story.

Palestinian journalists have also been denied press card accreditation, and in addition the Israeli army destroyed the infrastructure of the Palestinian Broadcasting Corporation in Ramallah and Gaza City in February 2002.

The events that have unfolded since September 11 have changed the stakes for journalists, who are being seen increasingly as legitimate military targets. A lethal precedent was set in this respect by the North Atlantic Treaty Organisation (NATO) in 1999, when it bombed the public broadcasting system in Belgrade. 16 media staff were killed. Governments and multi-lateral institutions are now routinely ignoring the fact that international law guarantees the rights of media staff and journalists as non-combatants.

The impact of this direct censorship is that that the full horror of conflict flowing from the Palestinian peoples’ struggle against the Israeli state’s occupation of the Gaza Strip and the West Bank is not seen. In addition, such censorship creates an environment where lethal stereotypes can take root and breed, such as the stereotype that the conflict is a continuation of a primordial struggle between Judaism and Islam, that Israel is a Jewish country and that all Palestinians are Muslim. These stereotypes – which strengthen Zionism’s claims to the disputed territories – are unconscionable in an information age where a proliferation of news sources are available.

These sources range from independent Palestinian organisations and journalists in the heart of the occupied territories, to Israeli revisionist scholarship that challenges the claims of Zionism. Unless concerted efforts are made to give voice to these sources, public debate will not reach a point where informed decisions can be taken about how to respond to the conflict. In the process, the most censored protagonists in the conflict - who are overwhelmingly the Palestinian working class – suffer double censorship. In turn, South Africa has a moral obligation to condemn acts of censorship, which in the case of this conflict are perpetrated overwhelmingly by the Israeli authorities, and more specifically the Israeli Defence Force. This should hardly be suprising given the fact that colonial occupation is by definition an act of censorship.

South Africa, with its apartheid legacy, has a moral obligation to ensure the liberation of the most censored voices in this and other conflicts. The South African media have a particular obligation to ensure that it promotes a full understanding of the Palestinian conflict, so that we can engage our own government on an appropriate response. In this respect, it is disappointing to note what seems to be a lack of commitment to diversifying news sources. The Media Monitoring Project has noted that South African media have relied almost exclusively on foreign news services. Broadcasters rely very heavily on news feeds such as CNN and Reuters, with there being very little evidence of concrete policies to diversify news sources, especially from independent media.

There has been very little evidence of media solidarity or even civil society solidarity with media workers in the Israeli-Palestinian conflict, relative to the amount of attention given to the situation in Zimbabwe. This disproportionate coverage led the Minister in the Presidency, Essop Pahad, to accuse the South African media recently of ‘selective morality’ by glossing over ‘invasions of media freedom perpetrated by countries such as Israel, when there is a vociferous howl to heaven about steps against the media in other countries, not least in Africa’. While Minister Pahad’s comments were somewhat ironic given the controversy at the event where he spoke about the non-invitation of the South African media, he makes an important point that when we defend freedom of expression, we need to do so consistently.

The extremity of the situation in Zimbabwe should not be underplayed, though. The passing of anti-media freedom legislation such as the Access to Information and Protection of Privacy Act and the Public Order and Security Act has led to intensifying attacks on the media. In the process, virtual news blackouts are taking place on aspects of the conflict: blackouts that, like those in the Israel-Palestinian conflict, will prevent South Africans from reaching informed decisions about the necessary actions to take in solidarity with the Zimbabwean people.

The South African media have been especially challenged to address diversity questions in the past few months, in view of the financial squeeze on the industry. Rising unemployment is leading to declining demand for goods and services, which is having a knock-on effect on the advertising industry. Already a nine-percent decline in adspend is anticipated this year, which coupled with rising costs for inputs such as paper, printing presses and broadcasting equipment, is placing a great deal of pressure on the industry. Rising interest rates are also bound to take their toll, making it even more difficult for media groups to afford credit. All these factors may well see many smaller independent media groups becoming unsustainable, and collapsing unless they receive financial support. In the process, the diversity of local and international news sources is reduced, and the temptation to rely on large multinational news groups increases.

It is in this context that the South African government is establishing a statutory Media Development and Diversity Agency to foster media diversity. The Agency will, amongst other things, support community and small commercial media, including news agencies located in marginalised areas of the country. The FXI has supported the establishment of the MDDA since the idea was mooted by the task team on Government Communications, COMTASK, on the basis that it would give real effect to the constitutional right to ‘receive..or impart..information or ideas’.

The founding legislation for the MDDA was heavily criticised earlier this year, for giving too much power to the Minister in charge of the GCIS. This power was to be exercised through passing regulations to prescribe detailed criteria for selecting projects to be funded and the percentages of money to be given to each sector, as well as in other areas. The FXI argued that in order for independence to be realised, the Board should enjoy full autonomy to decide on all areas of its operation, and predicted that the independence debate would sidetrack public attention from the vitally important work this Agency needs to undertake to support community media and small commercial media.

During deliberations, the Portfolio Committee amended the Bill to ensure that the MDDA Board was given the power to issue the regulations without reference to the Minister. These changes represented a major victory of freedom of expression, and the Portfolio Committee should be commended for adopting an unequivocal stand on the powers of the Board.

This commitment to freedom of expression was an important development in what was otherwise a worsening picture in South Africa. It has become apparent to the FXI that a culture of censorship is beginning to entrench itself in the country, to the extent where the Institute has had to create a position for an anti-censorship co-ordinator.

An analysis of the cases of censorship handled by the FXI in the past year points to the following trends:

 Censorship is on the increase. Censorship is definitely on the increase, with more and more limitations on freedom of expression becoming increasingly apparent.

 Public and private sector censorship on the increase Not only is censorship taking place at the level of the state; there are increasing number of cases involving private sector censorship, especially company censorship of employees.

 Recourse to apartheid legislation becoming more commonplace Public and private sector bodies are making increasing use of the legislation and practices of the former government, where apartheid legislation that is still on the statute books is invoked to effect censorship against journalists and ordinary citizens.

 New censorship provisions being introduced in legislation Apart from invoking apartheid legislation more and more often, here is also increasing evidence of the democratic government introducing censorious provisions in new legislation.

A small sample of the cases dealt with by the FXI are included below:

A recent example involves a gagging order binding iron and steel parastatal ISCOR and sixteen residents of Steel Vally, Vanderbijlpark to silence over environmental spillages in the area. The gagging order was granted by the Johannesburg High Court after ISCOR sought the order to prevent the residents from speaking about allegations against the Corporation that it was responsible for environmental leakages of chrome and cadmium into the areas groundwater, leading to residents suffering from numerous health problems.

According to the order, which was issued by the court after the plaintiff and defendant agreed to it, the parties to the proceedings are interdicted from communicating directly or indirectly with the media relating to the merits or related aspects of the legal proceedings, pending the finalisation of such proceedings. This order deprives journalists of information by gagging potential sources, and has even more far reaching consequences affecting the residents’ right to freedom of expression and association more generally. The ability of the residents to speak in meetings, or even to speak in a manner where the contents of the conversation could be relayed to journalists, could be curtailed out of fear of falling foul of the gagging order.

An example of private sector censorship involved Volkswagen. The FXI provided assistance and publicity to the case of the President of the Oil, Chemical and General Allied Workers Union (OCGAWU), Siyolo Williams. Williams was dismissed from Uitenhage Volkswagen plant after strike action at the end of 1999. While Williams was not directly involved in the strike action, he ensured that the striking workers had some measure of media access, and he also spoke out on behalf of the workers. As a result, VW pursued separate disciplinary action against him, and dismissed him, citing his media comments as the reason.

Another matter the FXI took up was an attempt by Engen fuel company to interdict a community activist, Ashwin Desai, from participating in meetings involving Engen workers. When Engen filed its application, the FXI sent a letter expressing interest in the matter on the grounds that it had severe repercussions for the rights to free expression and freedom of association. The application was subsequently dropped.

Another disturbing trend with respect to media freedom involves the increasing attempts to use journalists as witnesses. The most publicised case involved the murder trial of Hard Livings Gang leader, Rashaad Staggie. On August 18, 1996 editors of the Cape Times, the Cape Argus, Die Burger, the South African Press Association, Associated Press, Reuters News Agency and SABC were served with subpoenas to hand over to the court photographs, video footage and transcripts pertaining to meetings, gatherings and demonstrations of Pagad before the public killing of Staggie, as well as of events on the night of August 6 1996. The court also demanded that the media reveal the names of photographers responsible for the video and photographs and journalists who conducted the interviews.

In 2000, the elite Scorpion police unit raided the South African Broadcasting Corporation (SABC), the British Broadcasting Corporation (BBC), Reuters and Associated Press News Agencies and the offices of the National Association of Broadcasters (NAB) to obtain video tapes recording the murder of the Cape Town gangster Staggie. On the 14 May 2001, the Directorate of Public Prosecutions subpoenaed former chief photographer for the Cape Times Benny Gool to appear in court. However, Gool has refused to testify on two counts, firstly on principle as a journalist arguing that his testifying will compromise his ability to operate as a photojournalist as he will be seen as an extension of the police. Secondly, testifying in court will put his life in danger. So far, at least seven state witnesses against anti-drug vigilantes have been murdered since May 1998, leading to other witnesses changing their minds about testifying.

The Directorate of Public Prosecution further subpoenaed the editor of a Cape Town newspaper Die Burger and the newspaper’s photographer, Christo Lotter who took pictures during the murder of Staggie.

Gool consistently refused to testify, while Lotter eventually relented and agreed to co-operate. However, the state decided not to pursue Gool’s evidence and eventually the case was dismissed.

This was not the only case of journalists being subpoenaed to assist in a criminal investigation. In September 2001, subpoenas were issued to journalists Sam Sole and Jaspreet Kindra in a trial involving a whistleblower, Ashen Singh. Singh was a member of the MacAdams Investigating Directorate, which he alleged arrested the wrong people in the so-called Ndabizitha massacre. Singh allegedly leaked information to the media to this effect, and the state then subpoenaed the journalists to verify that Singh acted as their source of information. Singh is being charged under one of the most notorious pieces of apartheid censorship legislation, the Protection of Information Act.

The reasons for this rise in censorship are highly complex and numerous. In a relatively new democracy, it is to be expected that there will be ongoing tensions as a country charts a new course. However, these ‘normal’ tensions between media and government, the state and civil society, do not account for the increasing prevalence of censorship.

Principally, tensions around the delivery of social services has become one of the primary faultlines in South Africa today; increasingly these tensions are bubbling over into outright conflict. In the process, the rights which protect the conduits for expression of these conflicts are coming under increasing pressure, namely the freedoms of expression and association. It should not be surprising, therefore, that many of the cases the FXI has handled in the past year have involved individuals who have given expression to these tensions, and in the process have attracted the wrath of public and private institutions. Labour relations are also becoming more fractious, which is placing even more pressure on the free flow of information.

The FXI has also handled cases involving conflicts within the alliance formed by the African National Congress (ANC), the South African Communist Party (SACP) and the Congress of South African Trade Unions (COSATU), that have spilled over into disputes around the state of free expression in the alliance. These disputes have reflected growing tensions on macro-economic policy, and specific policies such as those around privatisation . In view of South Africa’s worsening economic profile, especially for workers, it is to be expected that these tensions will continue and, in fact, intensify.

The economic environment is also having an increasing impact on the most marginalised communities in South Africa in terms of access to information. The latest figures released by the South African Advertising Research Foundation shows declining radio listenerships on the country’s most accessible stations, owned by the South African Broadcasting Corporation. This is especially so in rural areas, amongst women and the elderly, and in areas and languages where there is, more often than not, very little competition: therefore it cannot be surmised that these listeners are migrating to other services.

The extent of user ‘churn’ - that is, the extent to which users are falling out of the communications network - is even more pronounced in telecommunications. Estimates have been made that almost two thirds of recently installed Telkom lines having been disconnected as users cannot afford to pay the spiralling costs of telephone calls: the majority of these lines are in underserviced areas. The rate of disconnections is defeating attempts to achieve universal access, not to mention universal service: an achievement which South Africa was moving towards realising.

These are deeply worrying developments, reflecting a trend where the right to ‘…receive or impart information or ideas’ is becoming more rather than less difficult to realise.

It should be noted that similar macro-economic prescriptions that have given rise to these contraditions are included in the New Partnership for Africa’s Development (NEPAD). It could therefore be anticipated that as NEPAD is implemented, the sorts of contradictions outlined above will be generalised across the whole continent, with all the attendant implications for freedom of expression.

In view of these developments, South Africa has a moral obligation to pause for a while and take stock of why freedom of expression is under so much pressure in its own back-yard. Without the sort of self-knowledge that comes from such a stocktaking exercise, it will be unable to become a truly global actor in defense of free expression rights. In fact, it may become the opposite.