Media observers are in agreement that 2010 kept South African journalists on their toes. Firstly, by covering preparations for the Fifa Soccer World Cup; and when that concluded successfully, our media’s attention turned to making sense of the plans by the African National Congress (ANC) to pass bills that would fundamentally change the way our society has functioned since 1994.

The debate about these bills has taken up reels of film interviews, seminars – at least one government and South African National Editors’ Forum (Sanef) gathering – and columns of print media space for much of 2010.

If passed, the Protection of Information Bill will mean that whistle-blowing, particularly targeted at politically connected individuals and groups, will be criminalised.

It would give authority to unscrupulous government officials to use the pretext of ‘protecting state security’ to justify classifying information that would otherwise expose abuse of public resources and power within state organs, thus shielding corrupt officials from proper public scrutiny and punishment by the courts.

Voters would be deprived of information which, in a healthy democracy, should help inform their voting decisions during elections.

Linked to this Bill is the much-maligned Media Appeals Tribunal, which could replace existing self-regulatory mechanisms such as the Press Ombudsman, in dealing with grievances against the media.

Debates about the two bills during the ANC national general conference (NGC) and the resultant public outcry seen in recent months led to the ruling party – faced with pressure from within and outside its ranks – deciding to pass the buck to Parliament for further scrutiny.

Parliament could, after going through the constitutionally prescribed public consultation processes, conclude that any attempt to pass the bills in their current form has very little chance of passing the constitutionality test; in which case they could be discarded entirely or watered down to levels of relative acceptance before being passed.

But we are still a long way off from that reality because the media and other civil society bodies are unlikely to accept passage of these bills, without ensuring the process goes through all legal tests, including ending up in the highest court of the land – the Constitutional Court – for a final ruling.

The Source document

The Protection of Information Bill (2010) is intended “to provide for the protection of certain information from destruction, loss or unlawful disclosure; to regulate the manner in which information may be protected; to repeal the Protection of Information Act, 1982; and to provide for matters connected therewith.”

From a purely legalistic point of view, and at face value, there seems to be nothing wrong with these noble goals. Most people would agree there are justifiable reasons for wanting to repeal the apartheid era (1982) version of the Bill, and replace it with one that is appropriate and relevant for the new democratic order.

It is common knowledge that most nations of the world have legislation in place to protect sensitive information that, if disclosed to enemies of the state, would jeopardise national security. Each nation determines levels of sensitivity of its information and the processes for classifying and
declassifying information.

In recent times, Zimbabwe passed very draconian media legislation that resulted in some foreign reporters being thrown out of the country, independent media houses banned or taken over by the state, journalists persecuted and essential freedoms of expression, and access to information taken away willy-nilly.

On the other hand, the United States’ guarantee of freedom of the media, freedom of expression and access to information could not allow its government to prevent recent publication, by WikiLeaks, of reports that were considered to be sensitive military files that could jeopardise the lives of American soldiers in war zones.

Despite the anger in certain quarters, no one went to jail for having published the leaked information.

Countries such as China and Russia also have draconian media regimes that result in regular assaults, persecution, jail and, in some cases, killing of journalists.

Looking deeper into reasons the ANC is so determined to go ahead with these bills, reveals a number of clues – almost all of them pointing to the need to make it more difficult for the media and ordinary citizens to access certain kinds of information.

Proponents of the bills are motivated by the number of times ANC and government officials have been caught in flagrante delicto; with hands dipped in state coffers, and forced to lose jobs or potentially lucrative deals that would not have been possible without political connections, ending up with tainted reputations.

Why is the ANC so keen on these bills?

In the words of ANC secretary-general Gwede Mantashe, “a media tribunal is required to deal with the ‘dearth of media ethics’ in South Africa. A Media Appeals Tribunal will help ‘correct’ the anti-ANC bias in the media.

“The Press is driven by a dark conspiracy to discredit the national democratic revolution.”

In a recent Sunday Times column, Jonny Steinberg related a story that occurred in 1850 in the Eastern Cape town of Alice. Apparently, for the first time in South Africa’s recorded history, a black man had sued a white man for defamation.

The black man, Jacob Bokwe, took exception for publicly being referred to as “a gross liar”. Bokwe is reported to have told the magistrate he wanted compensation for damage to his reputation.

Today, wrote Steinberg, reputations of black people are still being sullied; only this time, it is governance that is at stake. Black people are being told they cannot run a country because they are gross liars.

He quotes a recent complaint by Deputy Minister of Transport Jeremy Cronin over liberal media in South Africa: “Week after week after week of exposing another black scandal… frankly, it looks like racism to a lot of ordinary people.”

According to Steinberg, Bokwe – now personified by black people (particularly leaders) of today – is being told the quest for black dignity is, in fact, never won. It is a special case that requires ongoing measures.

The laws against defamation that protect white politicians in Europe and North America are not strong enough to protect our politicians here; the quest for black dignity requires more.

Steinberg speculates that were he to wake up in today’s South Africa, this is how Bokwe would respond to what is going on: “We have been in power for almost 17 years, and yet they’re still at it, calling us liars and belittling us.”

But those who identify with the above anecdote would have to agree that things are not really that simple. We have seen arguably unprecedented levels of corruption and other forms of abuse of public resources, and positions of privilege in the public sector in recent years.

Like an unstoppable tsunami – to borrow a phrase by Cosatu secretary-general Zwelinzima Vavi – brazen “tenderpreneurship” has almost become the order of the day in much of the public sector.

While a few low-fliers end up being arrested and made to pay, too many high-fliers get away with it because they know they can; their political connections and belief that they are untouchable have made a mockery of any government efforts to fight corruption.

Former National Police Commissioner Jackie Selebi felt untouchable for a number of years, allegedly under the protection of the president at that particular time, only to lose this carapace of apparent infallibility and eventually falling from grace when the political sands under his feet shifted, following the ANC’s watershed indaba in Polokwane.

It must be emphasised that the debate for and against media freedom, and freedom of speech in general, is not necessarily one that pits blacks against whites. There are blacks and whites on either side of the debate.

Many in our political space have still not come to terms with black journalists who argue against the proposed bills, resorting to personalised insults and calling them “black collaborators”, “coconuts” and modern versions of “kitchen niggers” who are unable to think for themselves.

On media ownership

Another argument advanced by proponents of the proposed bills concerns the relatively unchanged ownership of most media houses in South Africa.

The argument goes that for as long as media ownership remains dominantly in white hands, liberal or conservative, black people – particularly a black-led national government – will always be portrayed in a negative light and sullied. Media coverage of blacks will always have undertones characterised by age-old, preconceived, racist judgments.

The presence of competent black editors, journalists and, in a few instances, black shareholders in some media houses does not seem to make much of a difference. In fact, many black media professionals are often accused of behaving like whites, forgetting where they come from and which side of their bread is supposedly buttered.

Criticism of a black-led government by black writers is often treated more harshly than when it is done by whites. Critical black media professionals are easily accused of ‘collaborating’ with the presumed enemy.

The simplistic assumption is that black-owned media would not be too harsh on the government. Enter The New Age newspaper.

Is the media blameless in all this?

The short answer seems straightforward: far from it!

For each case of genuine corruption brought to the public domain by the media, there have been instances of shoddy investigative journalism, resulting in innocent people – in and out of the public sector – being wrongly judged in media-led courts of public opinion.

In many instances, the “innocent until proven guilty” dictum has been ignored by the Press, resulting in people being vilified in large, colourful headlines on the front pages of newspapers.

But once the truth comes to bear and the alleged ‘villains’ are actually exonerated by courts of law or, indeed, by other disciplinary processes, the media normally publishes small, hard-to-find apologies buried somewhere in the middle of the paper.

In other words, some parts of the media have been good at making premature accusations, only to whisper their mea culpa maxima in barely audible tunes when found wanting.

Many reputations have been sullied in this manner, with people and families losing their dignity and livelihood.

Some have argued that many positive government achievements have been largely ignored by a perceivably negative media, with much of its focus placed on things that go wrong and people who turn out to be failures in their positions of authority.

If anything good, the recent ‘pulling out of daggers’ by the ANC has forced everyone, particularly the media – despite reluctance in some quarters – to stop and seriously interrogate shortcomings that have been experienced and gone largely unpunished.

As a result, an avalanche of apologies has recently made it to front pages of a number of daily and weekly newspapers.

This would probably never have happened, had the debate never taken place in the first instance.

Problematic aspects of the bills

Following the referral of the proposed bills for further investigation by Parliament’s ad hoc committee, a number of interesting submissions have been made which, if accepted, would contribute to making these contentious bills slightly more acceptable by their opponents.

The first of these is the inclusion of a “public interest defence” clause that would ensure the disclosure of information – where public interest can be ascertained – is not criminalised. An example would be in the case of a whistle-blower exposing corruption in high places.

The second submission calls for the establishment of an independent review mechanism to help the minister with reviews and appeals, in cases whereby people are arrested for sharing classified information.

The third submission deals with a concern that as they stand, the bills give the right to classify information to any state organ, irrespective of whether or not it has any bearing on national security (a term that still needs to be properly defined).