Threaths to SABC’s independence are symptomatic of a wider trend in media control

(Article Published as "SA media must fight back", Sowetan, 15/10/2002)

Recent rumblings around the proposed broadcasting amendment bill have once again thrown into sharp focus the question of press freedom in South Africa . Though cynics may argue that everything, which needed to be said about the bill, has already been said and therefore further debates on the topic are frivolous, it is my contention that the necessity of keeping this conversation alive has never been more urgent.

From the outset we need to ask ourselves why all of a sudden government has become so bold as to want to do what was clearly unthinkable a few years ago. Any proposal that smirks of state interference with media freedom in the country will no doubt invite a backlash from civil society. But it is quite surprising that less than a decade since the onset of majority democracy in South Africa, government has the courage to propose changes that would in many respects erode the independence of the SABC and revert it into a state broadcaster.

Partly, this may be explained by the fact that in the last few years, we have witnessed a growth in the tendency by government to revert to restrictive legislation such as the Defence Act and the Armaments Development and Production Act, to prevent the media from reporting about “sensitive” issues. The private sector and prominent personalities too have followed suit with threats of crippling lawsuits against the media for defamation. Much more recently, journalists have been subjected to attacks, harassment and intimidation for reporting unfavourably about the activities of certain individuals.

It is particularly because of this ominous rise in censorship in both public and private spheres that the media and civil society in South Africa should be more astute and vigilant. Government has argued that its new proposals with respect to the SABC are necessary for the sake of “public and national interest”, two concepts that are wide open to any number of interpretations. The state also wants the broadcaster to prepare and submit for approval by the minister of communications, its editorial policies on these three key areas.

What is becoming quite evident however, is that government wants to fashion out an increasingly complaisant public broadcaster. Calls that the SABC must be made responsible for “accurate, accountable and fair reporting”, presumably in order to advance the “national and public interest” must be treated with a lot of circumspection. If allowed to take place, the changes will undermine the very democracy that the liberation movement fought so hard to achieve

What the government’s policy planners have failed to take into account is the fact that public and national interest are two diametrically opposed concepts. Whereas national interest is that which the government itself, legitimate or otherwise, defines as important for the public, public interest on the contrary, is that which the citizens determine to be essential for their lives. We may even argue that government and national interest are a particular facet of the wider public interest.

Quite interestingly, some commentators have suggested that because the present democratic government is an expression of the will of the majority of South Africans, it’s interests, which are national, are synonymous with those of the public. Nothing could be further from the truth if controversial issues such as the HIV/AIDS epidemic, the arms deal and the recent floor crossing legislation, is anything to go by.

Government should have expected that the proposed amendments would draw a barrage of criticism from civil society. It is remarkable that even the SABC itself, which is seen in certain respects as having developed too comfortable a relationship with the state, cautioned the government about its plans. During the hearings before the Parliamentary Portfolio Committee on Communications, the corporation warned that such proposals would undermine its independence, create the perception that the state seeks to increase control over its activities and undermine its credibility.

A large number of civil society organisations also opposed the state’s attempts to increase its influence over the SABC and called instead for greater independence by the corporation. The Media Monitoring Project termed the planned changes “dangerous” while the National Association of Broadcasters said that the ANC government was attempting to resuscitate the long and dreadful history of state interference in the affairs of the broadcaster. Labour federation Cosatu argued for the express inclusion of freedom of expression and journalistic independence within the charter of the corporation.

Taken to task over these amendments, Communications Minister Ivy Matsepe-Casaburri denied that the government wanted to turn the SABC into a propaganda machine holding instead that it wanted “accurate and responsible reporting” from the broadcaster. Many people did not believe her.

With the benefit of hindsight, we can almost predict what the situation will be like for the SABC if the proposed amendments are steam rolled through parliament. It is almost certain that the corporation will have to become extremely adept at performing its constitutional role of informing the public, while at the same time playing to the wide gallery of state bureaucrats and the machinery of the ruling party.

State interference with media freedom is not a new phenomenon in South Africa . Since the inception of formal democracy eight years ago, the media has lived under the constant shadow of censorious legislation inherited from apartheid’s arsenal of repression. This legislation damns the prospect of establishing a truly independent and vibrant fourth estate in the country. Ominous statutes such as the notorious Protection of Information Act passed in 1982 at the high noon of apartheid, and section 205 of the Criminal Procedure Act (of 1977), which can be invoked to compel journalists to reveal the sources of information, are still part of our law.

Again, a worrying and dangerous trend that has emerged post September eleventh is the practice by many governments to force independent institutions of society to pander to their whims and caprices under the guise of national security and the war against terrorism. It is not surprising therefore that in line with America ’s philosophy friend or foe, governments have been unceremoniously falling out of bed in their rush to enact new and more stringent laws on terrorism. Increasingly, the media has found itself constrained by clauses which determine how information is to be acquired and disseminated.

In South Africa , two such pieces of legislation have already been drafted and they ought to raise serious concerns within the media fraternity concerning their implication in the long run. The first of these is the newly published Draft Anti-Terrorism Bill. Besides the bill’s imprecise, overly broad and vague definition of what constitutes terrorism, it creates a legal obligation on every individual to answer questions or produce things as may be required by a police officer under the authority of the national director of public prosecutions. It does not afford journalists the privilege of non-disclosure (as is the case with attorneys or spouses), and not even a “just cause” excuse, as happens to be the case with the controversial section 205 of the Criminal Procedure Act.

It is not impossible to imagine that in future, the state will prefer to use such legislation to curb press freedom rather than having to take recourse in the law of defamation or the criminal procedure with its “cumbersome” and rigid requirements for the admissibility of evidence. Media institutions and human rights organisations need to take particular note of this law.

The second piece of legislation, which raises a very worrying spectre for press freedom is the Interception of Communications Bill. This Bill allows for the monitoring and interception of communications whether in printed or electronic form, and prohibits any kind of communication that is incapable of being monitored and intercepted. In other words, the state will lawfully tap into correspondence, news, faxes, speeches, visual images or sounds between individuals and organisations in South Africa almost at will.

All that the state will have to argue is that it has a legitimate belief that such communications will endanger national security and therefore it needs to keep an eye on them. The prospect of abuse and violation of a host of rights including the right to freedom of expression and the right to privacy will no doubt be exceedingly high. Taken together, these two draft pieces of legislation pose a major threat whose sheer enormity will only be felt by the press after their implementation.

For press freedom to thrive, a healthy and enabling atmosphere must be encouraged and fostered by the state. It is a matter of great concern therefore that the state, as guarantor of this essential sector of our society, has shown a remarkable tendency to whittle away the many gains secured after a long and protracted struggle for an independent, open and vibrant media in South Africa.

By Simon Kimani

Anti-censorship coordinator,
Freedom of Expression Institute,

8 October, 2002