These are:
The Freedom of Expression Institute (FXI) is watching these developments with a deep sense of foreboding that the politicians may fail the country in respect of these rights. Why should we feel this way?
Firstly, the African National Congress (ANC), one of our erstwhile allies in many campaigns conducted during the early 1990’s in pursuit of the freedom and the independence of the media and the freedom of speech generally, has reversed its stance on access to information. The original clause in the working draft of the Constitution, released late last year, gives citizens the right to know, i.e. an unqualified right of access to information held by the government. In the interim Constitution the access to information clause is not premised on the principle of a right to know, but merely on the premise of a need to know. In other words, you have to explain to the government that you need the information in order to protect one of your other constitutional rights, and should it agree, only then will you be given the information.
The FXI and many other members of civil society therefore welcomed the reformulation of the clause on the right to know basis. After all, we argued, information held by the government does not belong to the government, it belongs to us, the people. We pay taxes which enables the government to collect and store all kinds of valuable information, including information about its own functioning and decision-making processes. Government is therefore merely the public custodian of the information it holds.
This reformulation was undisputed until recently, during the last stages of the drafting process, when the ANC introduced without any notice or public debate, a new formulation. This formulation again qualifies the right on a need to know basis. This turnabout is truly amazing in the context that Deputy President Thabo Mbeki of the ANC appointed a task group 18 months ago to draft an Open Democracy Bill which would provide the legal framework in terms of which this right would be exercised. This task group, chaired by Mbeki’s legal adviser, Adv Mojanku Gumbi, recently completed the final draft of the Bill. Although not without its problems, this Bill is a remarkable piece of legislation and importantly, it is clearly premised on a right to know.
So, on the one hand, a prominent ANC leader has produced a remarkable piece of draft legislation based on the people’s right to know, and on the other hand a fundamental tenet of this Bill is being opposed by ANC Members of Parliament in the Constitutional Assembly (CA). The question must arise now as to whether the ANC in Parliament will be willing to promulgate the Bill, given its stance on the right of access to information in the CA.
The ANC MP’s, it would appear , are largely ignorant of the elaborate consultation process which has been taking place in relation to the development of this Bill. An Open Democracy Advisory Forum (ODAF), involving many organisations, was established by the FXI in the middle of last year so that interested members of society could help shape the development of this Bill. Other organisations involved include the Congress of South African Trade Unions (Cosatu), the South African Chamber of Business (Sacob), the Institute for Democracy in South Africa (Idasa), the Centre for Applied Legal Studies (CALS), the Communication Departments of various Provincial Governments, the South African Communications Service, the National Community Media Forum, various information systems organisations and experts and community development groups. Odaf liaises with the task group and has also met with and corresponded with the Parliamentary Committee on Communications to ensure that public hearings will be held before this Bill is promulgated.
The task group itself held a number of consultative seminars before it began drafting the Bill to ensure agreement on the basic principles underlying the Bill, including that it would be premised on the principle of a right to know. Early last year Rhodes University held a major conference to take discussion forward about the Bill, and only six weeks ago, the FXI again held a major conference to address controversial issues of debate around the Bill. This conference was attended by international speakers, local interest groups and some members of the task group. It was opened with a message from ANC Minister Kader Asmal.
To now learn, that after all this effort in time, money and energy spent by both the government task group, the FXI, Odaf and other non-governmental organisations, that the ANC has changed its position on the people’s right to know, comes as a profound shock.
ANC constitutional negotiator, Willie Hofmeyr, has told the FXI that the ANC has had doubts about the wording of this clause since late last year, but only recently presented its amended option as a consequence of time constraints. Their concerns, he said, arose out of the possibility that some requests for information could cost the government exhorbitant sums of money. If the information was denied for this reason, it was likely that the Constitutional Court would overrule the government and order it to provide information irrespective of the financial costs involved.
The FXI has pointed out that the solution to this problem does not lie in narrowing the scope of the right, but in addressing the specific problem outlined. This could be done through the Open Democracy Bill. The same problem, in any event, could present itself to information supplied on the basis of a rights qualification, i.e. on a need to know, basis.
Secondly, the constitutional clause on freedom of expression has been significantly amended by the ANC in the Constitutional Assembly to remove constitutional protection from certain forms of speech including racial, ethnic, gender and religious hate speech, propaganda for war and incitement to imminent violence. This clause, at least, was identified in the media as one of the few remaining clauses about which their was disagreement among the various parties. This in itself shows how uncomfortable our politicians are with the concept of freedom of expression.
They have , apparently at the suggestio tried to curtail the damage caused by this limitation to freedom of expression by introducing a harms test to hate speech. This means that constitutional protection will not exist for hate speech if such speech constitutes incitement to cause harm.
Advocate Gilbert Marcus, one of South Africa’s leading freedom of speech litigators, recently prepared a detailed paper for the Conference of Editors for submission to the CA which shows that many forms of legislation were enacted by the apartheid government and its colonial predecessor to curb racial hate speech. With few exceptions it was predominantly applied to black leaders and activists in order to silence them from advocating the freedom and rights of black people. In other countries, such as the United States, similar laws have been used to stifle minority groups, such as black communities and women. In Denmark a group of journalists were successfully prosecuted for making a television documentary which portrayed a racist group. The law was enforced against them despite the fact that they were simply holding up a mirror to their society to show what was going on in its midst.
The point is that anybody can use the law against anyone else. Therefore, should black persons berate white persons for the crimes of apartheid, they could easily fall foul of the constitution in terms of hate speech. It is naive to think that it is only racist whites who would be curbed by such a constitutional provision.
This attempted solution in dealing with the downside of free speech, in our view, is to indulge in classic censorship. What it amounts to is that the MP’s in support of the constitutional limitation to hate speech will allow us constitutional protection for saying the things they agree with, but not for the things they do not agree with. One cannot deal with freedom of expression in this way. Fundamental to understanding freedom of expression is to realise that it is not something which is made up of different parts such as good speech and bad speech. It is both, and if you believe in it, you have to allow both.
Thirdly, the Parliamentary Portfolio Committee on Home Affairs recently concluded public hearings on the draft Bill on Film and Publication. It heard powerful testimonies from those who seek a return to the old era of censorship, from those who are opposed to censorship, including the FXI, and from others trying to steer the middle ground. This Bill too in many respects has positive qualities in that its main purpose is to classify materials in terms of age restrictions and symbols which warn viewers about the material they are likely to view. But it still retains the ability to ban materials and to cut scenes out of films. Material banned will be classified as “XX”. How the committee and eventually Parliament deals with this proposed legislation remains to be seen.
But together with the constitutional clauses on access to information and freedom of expression, this Bill too will provide South Africa in the near future with a barometer to gauge the level of commitment of this government to the values of free speech and the degree to which is willing to become open and accountable to its electorate. Verbal support of these values have often been stated in government messages. But it is now making law and has therefore entered a critical testing period on precisely where it stands on these matters. (This is a re-edited version of an article by FXI executive director Jeanette Minnie, which appeared in the Sunday Times March 17, 1996)