Scene 1: Ladysmith Hospital, KwaZulu Natal, South Africa:
Gugu Cele leans heavily on her walking stick and stares beseechingly at the white-jacketed doctor: “Please, please tell me why my son died. He was not so sick when his boss from the mine brought him to hospital last week. Please, tell me what happened to him.”
The doctor, not unsympathetic to the woman’s plight, responds soberly, “I’m sorry, Mama. Your son’s medical records are classified.”
|The new media law seems predicated on a (mis)conception that the law would address South African politicians’ concerns about the loss of dignity.|
Scene 2: Cape Town, South Africa:
Lebo Malefo, an administrator at the South African Parliament, has been suspended from her job for blowing the whistle on the misuse by parliamentarians of their travel privileges. She is alone at home with her aged mother-in-law when six policemen arrive at her door and arrest her for the possession of “classified information.” She protests that possession of the information was part of her job, reconciling expenditure claims made by members of parliament.
If the information has since been classified, she is surely not culpable? Lebo is arrested nonetheless, and warned that she may face a prison term of up to 15 years.
Scene 3: Rosebank, Johannesburg, South Africa:
A meeting of editors and media practitioners is underway in the boardroom of a major publishing group when seven uniformed and armed policemen arrive at the group’s offices to arrest a single, unarmed journalist, Freedom September.
He is charged with possession of “top secret” information about a business corporation that has close associations with the family members of a cabinet minister and has won several lucrative government contracts. The Minister of State Security had previously denied that the information, linked to the operations of a subsidiary in Lesotho, even existed.
The reader might be forgiven for assuming that these scenes come from South Africa’s unjust apartheid past. In reality, they are chilling insights into the potential for future misuse of a contentious piece of legislation currently under consideration by the country’s National Assembly.
|In the aftermath of the World Cup, it may seem inconceivable that South Africa could regress so much.|
Indeed, the third scene mirrors the actual arrest of a journalist by police in recent weeks, albeit on different charges. The gung-ho nature of the arrest, timed to coincide with a gathering of media practitioners from around the city, was clearly designed to intimidate not only the journalist in question, but his peers in the industry.
In the aftermath of an extremely successful World Cup, well-reported by the local and global media, it may seem inconceivable to outsiders that South Africa could regress to the degree portrayed in the scenes above. Recent moves by the state to classify information and to regulate the media are alarming, to say the least.
The Protection of Information (POI) Bill, if passed, would allow the head of any government organ to classify any information if he or she deems this to be in the “national interest.”
The power to classify material en-bloc, including commercial or third-party information, without giving reasons other than a vague “may be harmful,” will cast a veil of secrecy over the operations of government and even corporations.
This will inevitably undermine clean and accountable governance — and hamper the exposure of corruption in both the state and corporate sectors.
Thus, if the law is passed, South Africa’s Health Ministry could in theory classify the medical records of Gugu’s son — whether to hide poor safety measures at a mine whose shareholders include high-level politicians, or to shield negligence by the medical personnel who attended the patient.
|Some of the criticisms raised — such as bemoaning occasionally shoddy journalism — do have some validity.|
Similarly, since the law would override existing whistleblower protection and public interest provisions, Lebo’s well-intentioned exposé of the misuse of taxpayers’ money could conceivably be criminalized by the post-facto classification of financial records. In effect, she would be punished rather than rewarded for her civic-mindedness.
In Freedom’s case, his right as an investigative journalist to access and publish news about commercial and corporate bodies, previously upheld by the Promotion of Access to Information Act (PAIA), could now land him in jail for a quarter of a century.
The bill’s “double-blind” provision entitles senior officials to refuse to confirm the very existence of information classified as top-secret. This tacitly encourages dishonesty, equivocation and the obstruction of fair and reasonable inquiry on the part of public servants.
It further gives the state security agencies blanket protection, heavily penalizing even the disclosure of unclassified information in the intelligence and security sectors.
Arguments focusing on the bill’s unconstitutionality were made by various civil society, media and legal bodies at parliamentary hearings in July 2010. The responses by legislators from within the ruling African National Congress (ANC), which has a majority of over 60% in the National Assembly, clearly indicated a determination to pass the law.
The legislators’ intent seems predicated on a (mis)conception that the law would address politicians’ concerns about the loss of dignity incurred when the private peccadilloes of public figures are exposed by the media.
|But the solution to these challenges is neither a state-controlled media tribunal nor draconian protection of information legislation.|
This misperception has carried through into calls by the ANC and its alliance partner, the South African Communist Party (SACP), for a state-appointed media appeals tribunal to better regulate what it views as an irresponsible press corps.
There has been little attempt by the tribunal’s proponents to substantiate their allegations of gross misconduct on the part of the press, and the ANC’s spokesperson has been unable on at least two occasions to produce this evidence when challenged to do so.
However, it must be noted here that some of the criticisms raised — bemoaning occasionally shoddy journalism, the relative weakness of the existing Press Ombud system, the lack of diversity within the media and the monopolies on media ownership — do have some validity.
But the solution to these challenges is neither a state-controlled media tribunal nor draconian protection of information legislation. Similar mechanisms have been misused in other parts of the world to erode democratic gains. They should ring alarm bells for all those who seek to support South Africa’s hard-won constitutional freedoms.
Editor's Note: Part II of this feature will be published on The Globalist tomorrow.