Public opinion and the participation of civil society are two of the main elements of a democracy, where the media plays a vital role. Therefore, the debate about the PIB has been in the public space since it was first tabled and resurfaced when an amended version was reintroduced to Parliament in 2010. The Business Day (2/6/2010) reported that the PIB had returned to Parliament with much of its “draconian provisions” intact and with clauses that would criminalise “information peddling”.
By November 2010, the Open Democracy Advice Centre of South Africa (ODAC) estimated that Avaaz, an advocacy group, had collected over 40 000 signatures for a petition against the Bill, The Right-To-Know campaign (R2K) had support of over 9 000 individuals and 350 institutions and the DA had delivered a petition supported by close to 30 000 South Africans (ODAC, 2010).24 ODAC also argued that at stake were constitutionally enshrined principles of transparency of the public service, accountability and open democracy, seen to be under threat from the provisions of what has come to be referred to by critics as the “Secrecy Bill”.
Initially, the government seemed unmoved amid such widespread criticism and even called in senior government legal advisors to state before Parliament that the Bill in its original form would pass constitutional muster (ODAC, 2010). This set the scene for mobilisation around local media by civil society, business and even foreign media in opposition of government’s legislative intentions. The already somewhat turbulent
24
ODAC’s mission is to promote open and transparent democracy; foster a culture of corporate and government accountability; and assist people in South Africa to be able to realise their human rights (ODAC, 2010).
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relationship between government and the media was further plunged into turmoil by the heavy-handed arrest of the Sunday Times journalist Mzilikazi wa Afrika. The media reacted with outrage and linked the incident to the proposed legislation, seen as an attempt to ‘muzzle’ them. According to the Mail & Guardian (4/8/2010) Mzilikazi wa Afrika was “marched out of his offices” at the Avusa building in Johannesburg, just as editors emerged from a meeting about media freedom.
A front page editorial in The Citizen (5/8/2010) commented:
A campaign against the media, orchestrated by ANC cadres who do not like their dealings being aired, has taken an ugly, physical turn ... The chilling message ... is clear: Write about us and we will get you.
The media went as far as linking these measures to apartheid legislation. A Sowetan editorial on 5/8/2010 critiqued: "While purporting to be on the side of those who will give their life for a free press, the ANC is actually hell-bent on taking the country back into the dark days of apartheid legislation." The leader of the opposition Democratic Alliance (DA) and Western Cape Premier, Helen Zille, agreed (Pretoria
News 5/8/2010) that the arrest of wa Afrika could not be viewed “in isolation from the
disturbing trends to stifle media freedom”. She saw it as “a sinister forewarning” of how media freedom would be infringed upon by the proposed Media Appeals Tribunal (MAT) and the Protection of Information Bill (PIB).
Thirty-six South African editors subsequently signed the Auckland Park Declaration in protest against the PIB expressing concern about attempts to curtail freedom of expression and the free flow of information in the country. They said they “vigorously oppose” the restrictive clauses in the PIB and the proposed MAT and appealed to the government and the ruling ANC to abide by the founding principles of the South African democracy and abandon these proposed measures (Times Live, 8/8/2010).
A Beeld editorial (10/8/2010) noted that the ANC was concerned about the things the media did right “exposing of squandering, poor governance and corruption" and concluded that the Auckland Park Declaration stated correctly that the ANC planned to “hit at the roots of democracy”.
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The government also faced dissent from its own ranks and the ranks of the ruling alliance, as the Business Day (23/8/2010) quoted Congress of South African Trade Union (COSATU) General Secretary Zwelinzima Vavi as saying the proposed PIB was a "mockery" and assuring journalists the PIB would not be passed as it was. As the resistance built against the measures, former intelligence minister Ronnie Kasrils also called for a rethink on the legislation, calling it "too broad and unfocused" and the penalties proposed "harsh" (Daily News, 16/6/2011).
Civil society also joined the resistance to the perceived clampdown on the media. It was reported in the Sunday Independent (22/8/2010) that South Africa's most prominent writers started a petition, joining the media in protest against the PIB as well as the ANC's proposed MAT. Among the signatories of the letter sent to President Zuma were many whose works were banned under apartheid.
The Business Day (19/8/2010) quoted the General Council of the Bar saying that the PIB was “unnecessary, unconstitutional and undesirable,” adding its voice to the widely held view that it would not pass constitutional muster.
The debate also migrated to the foreign media. The Rapport (15/8/2010) indicated that "the proposed MAT and laws to limit especially the print media in South Africa were making headlines in newspapers worldwide." The Sunday Tribune (22/8/2010) reported that Gavin O'Reilly, the president of the World Association of Newspapers and News Publishers, sent a letter to South Africa’s President, Jacob Zuma, on behalf of the association and the World Editors' Forum, presented formally at the UN, UN Educational Scientific and Cultural Organisation (Unesco) and the Council of Europe. It called on the President to ensure that the PIB and the MAT proposals were either amended in line with constitutional safeguards for freedom of the press, or withdrawn altogether.
Local media noted government concerns about foreign coverage of the debate on media freedom in South Africa. The Business Day (20/8/2010) quoted government spokesperson Themba Maseko as saying that “negative international coverage of South Africa's perceived intention to restrict the freedom of the press and expression
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was increasingly concerning the government”. He acknowledged that the negative stories had ‘migrated’ to international pages and that government was "obviously concerned about that". The Sunday Times (19/9/2010) noted that the Minister of State Security, Siyabonga Cwele, appealed for calm in the debate about the government's proposed PIB, saying the “loud opposition” to it was undermining South Africa's international reputation.
The Citizen (20/9/2010) objected to Minister Cwele’s analysis of the situation asking:
“Does he really lack the insight to see that it is the onerous provisions of the PIB, rather than the widespread protests, that are causing damage to South Africa’s image abroad?”
The Business Day (19/8/2010) quoted South African National Editors’ Forum (SANEF) Chairman, Mondli Makhanya, as saying that he was very encouraged by the interest the international community had taken "in this worrying development”.25 He remarked that "those people driving these processes” had to realise that South Africa was not “some small island in the Pacific” and what happened in this country was “being very closely watched by the world."
Government eventually relented and returning to Parliament in October 2010 its new position included improvements to the Bill:
• the removal of the concept of protection of information in the national interest;
• the removal of the section related to the classification of commercial information; and
• The public interest override for review of classification decisions. Even though the government agreed to a public interest override for requests for information or review of classification decisions, there was no agreement on a public interest defence for people that disclose or publish or distribute classified information (ODAC, 2010).
25
SANEF is a voluntary forum of senior journalists, editors and journalism educators from all areas of the media industry in South Africa (SANEF 2012).
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Further concessions were later announced as the Pretoria News Weekend (25/6/2011) quoted ANC Member of Parliament (MP) Llewellyn Landers saying “a rethink came as a result of serious concern expressed by senior ANC members and civil society”. The key concessions were:
• narrowing the scope of the PIB to apply only to security and intelligence services, with a clause allowing other organs of state to apply for inclusion if necessary;
• allowing for a retired judge to review disputed classification of information; and • Removing minimum jail sentences that apply without the option of a fine for
the disclosure of classified information, except for the crime of espionage.
SANEF told MPs (Daily News, 27/6/2011) that while it appreciated important proposed amendments, such as narrower grounds for classification and the introduction of ‘balance’ between the needs for openness and transparency and preserving state secrets, it was still concerned about many remaining aspects of the PIB and their potential effects on “our democratic state”. The Sowetan (27/6/2011) also urged the ANC to go further to include the public interest defence clause, which would essentially decriminalise the release of information in the public interest.
iol (2/9/2011) reported that the absence of a public-interest defence clause in the PIB
meant it was destined for a Constitutional Court challenge, where critics hoped it would be “thrown out”.26 The ANC persisted in refusing to include such a clause, which would protect anyone – including journalists and whistleblowers – which released or published classified information in the public interest. Journalists would face stiff prison terms under the proposed law if they published classified information without first asking the government to declassify it.
Media lawyer Dario Milo said the absence of a public-interest defence was problematic, because it would have functioned as an important means for information of serious concern to citizens to be disclosed, regardless of the fact that the
26
The Constitutional Court is South Africa's highest court on constitutional matters. Its jurisdiction is restricted to constitutional matters and issues connected with decisions on constitutional matters (Constitutional Court, undated).
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information was classified (iol 2/9/2011). The ANC told Parliament’s special committee processing the PIB that it would not allow a public-interest defence to be written into the PIB, as this would place journalists in a class of their own. Arguing against the inclusion, the ANC’s chief negotiator on the PIB, Luwellyn Landers, said the PIB merely made the media subject to the rule of law.