Anti-Terrorism Bill will undermine the media

(This is the un-edited version of the article which appeared on page 17 of the Sowetan Sunday World of 18 May 2003 entitled “Media must wake up over terror bill”)

One cannot fail to notice that in the on-going public debate about the Anti-Terrorism Bill, the manner in which the proposed legislation will affect the media in this country appears to have either been conveniently ignored or outrightly forgotten.

This is particularly worrying given that the media, as custodians of information, play an undeniably significant role in giving society a critical voice and in establishing a platform for the exchange of thoughts, ideas and opinions. Of special concern to the media industry is that privacy of sources and confidentiality, two core pillars that underpin investigative journalism will come under extremely severe strain.

The Bill proposes to have any person who may have knowledge relevant to the commission of a terrorist offence brought before a judge and ordered to provide the required information. This provision will have far reaching consequences for the media, who in the ordinary course of their work come across material that the state could deem relevant to the investigation of terrorist activities.

By using a procedure dubbed “investigative hearings”, the state will be able to obtain information and material such as records, notes, tapes or documents from individuals. If after an order has been served, a person fails to appear before the judge, or if the police believe that such person is evading service of the order, a warrant may be issued and the individual could be arrested and detained until the necessary information has been obtained.

The most pervasive aspect of this provision is that a person may not refuse to answer a question or produce a thing unless such is “protected by any law relating to non-disclosure of information or privilege”. To compound the problem, the same provision states that “…no person may be excused from answering a question or producing a thing…on the ground that the answer or thing may incriminate the person or subject the person to any proceeding or penalty”.

Failure to hand over material or answer questions to the satisfaction of the judge will make the person liable for contempt of court and subject to imprisonment for a period lasting up to five years.

There is apparently a subtle attempt to mitigate the harsh overtones of this provision, by stating that the information or evidence provided cannot be used against the individual in criminal proceedings except for the prosecution of the offence of perjury. The Bill does not say if the person is protected against civil proceedings or even civil claims.

As in all the other questionable features of the Bill such as the rather vague and imprecise definition of what is meant by a ‘terrorist act’ and the extremely harsh bail conditions, the investigative hearings raise crucial issues relating to freedom of expression and the ability of the media to operate without hindrance in this country.

It goes without saying that these hearings, which has been punted by top state officials as the answer to the otherwise despised option of detention without trial, are in direct violation of the freedom of expression clause in our Constitution. This is so because even journalists will be compelled to provide information to the state and they will not have an excuse or way out.

Furthermore, the provision infringes upon a person’s right to remain silent; it violates the right of individuals not to incriminate themselves and it contravenes the right of the media to operate freely. Both the language and content of this provision are too wide and are incapable of being narrowed down for the desired purpose of obtaining information that may be important for conviction of alleged terrorists.  The supposed exemption of information protected by the law relating to non-disclosure or to privilege would apply to the rare individual like a lawyer or spouse, not a journalist.

An explanatory memorandum accompanying the draft Bill introduced at the end of 2002 talked of the investigative hearings being held “along the lines of the procedure [provided for] under the Criminal Procedure Act”.  This, however, is left more to imagination and inference, and is not explicitly stated in the Bill.

Since its appearance in the late 1970s, the controversial procedure of forcing journalists to appear in court and provide information has been the subject of much acrimonious debate.  The Apartheid State regularly invoked this facility to compel journalists to testify in court, reveal their sources of information or produce material that the police could not be able to lay their hands on through their ordinary investigation processes.

Some critiques have described this procedure as a “relic of the past masquerading as law” which should have exited with the old order. That fact notwithstanding, the procedure has occasionally been used by the democratic state in attempts to compel journalists to testify in court. The most prominent of such cases is that of photojournalist Benny Gool who was ordered to appear in court and testify about photographs he had taken during the murder of gang leader Rashaad Staggie in Cape Town . The state was eventually forced to retreat due to sustained pressure and opposition from the media fraternity.

Though the Constitutional Court has found that the procedure is “as narrowly tailored as possible to meet the legitimate state interest of investigating and prosecuting crime”, controversy abounds regarding why journalists should continue to be denied the kind of privilege accorded to lawyers, doctors or religious ministers in respect of confidential information.

It was as a result of this tension between media freedom and the administration of justice, that the South African National Editor’s Forum (Sanef) decided to enter into an interim arrangement with the Departments of Justice and Safety and Security on how journalists’ sources and information are to be treated. It was agreed that Sanef would be consulted in all cases where the state sought to compel a journalist to testify in court.

The arrangement is yet to be finalised.

The Anti-Terrorism Bill not only severs the fetters of “just cause” which even in the days of apartheid afforded journalists some partial measure of protection, but it also vitiates the letter and spirit of our democratic constitution by seeking unjustifiably to sacrifice media freedom at the alter of national security.

In the current international campaign against terrorism, it is not unthinkable that the state would begin to use this legislation rather than other readily available but less draconian measures, to force journalists to disclose and hand over information and their sources. All it has to do is situate the act or activities being investigated within the confines of the anti-terrorism law.

If one takes into account the existence of other laws such as the recently passed Interception and Monitoring Act which allow the state to snoop on all forms of communications, then the Anti-Terrorism Bill should become a matter of serious concern to media practitioners in South Africa . The fact that eight months since the appearance of this Bill the media has shown not even the slightest hint of interest creates room for a great deal of concern.

Simon Kimani Ndung’u

Head: Anti-Censorship Programme
Freedom of Expression Institute