August 16, 2010
President of the Republic of South Africa
Pretoria, South Africa
Via facsimile: (27) 12 323 8246
Dear President Zuma:
We are writing to express our concern about legislative proposals that would severely restrict South Africa’s independent press corps, which is distinguished for its dynamism and professionalism. We call on you as the head of state and leader of the ruling African National Congress (ANC) to ensure that such proposals are either amended in line with constitutional safeguards for freedom of the press and access to information, or withdrawn altogether in the interest of preserving the transparency, accountability, and democracy gained after apartheid.
The Protection of Information Bill currently before parliament is meant to replace an apartheid-era law dating from 1982. Yet the broad language and far-reaching provisions of the legislative proposal introduced by Security Minister Siyabonga Cwele is reminiscent of apartheid-era regulations since it would virtually shield the government from the scrutiny of the independent press and criminalize activities essential to investigative journalism, a vital public service. Journalists, under the proposed law, would face heavy jail time for violations.
Under the bill, officials and state agencies would have unchecked authority and discretion to classify any public or commercial data as secret, confidential, protected, or sensitive based on vaguely defined “national interest” considerations and without any explanation, according to our research and legal experts. National interest would, for instance, include “details of criminal investigations,” a definition that risks chilling coverage of public law enforcement and judicial matters. Political appointees overseeing state intelligence agencies would have final say over which information should be classified or not. The bill places the onus on journalists to establish “public interest” (broadly defined as “all those matters that constitute the common good, well-being or general welfare and protection of the people”) to justify declassifying any information. Journalists and others found guilty of unauthorized disclosure of official or classified information could face up to 25 years in jail.
We are also concerned about an ANC proposal to establish a special tribunal called the Media Appeals Tribunal that would issue unspecified sanctions for complaints against the press. As the leader of the ANC, we call on you to urge the ANC General Council to abandon this proposal as government-sponsored media regulatory agencies across Africa have been used time and time again as instruments of political censorship. Moreover, we believe members of the public already have mechanisms of legal redress to settle disputes with the press in addition to the existing media self-regulatory institutions.
Beyond our concern about legal developments, finally, we are concerned about the August 4 arrest and ongoing prosecution of Sunday Times journalist Mzilikazi wa Africa on charges of “fraud, forgery, and uttering,” (which, in legal terms, means “to issue a forged document”) over an unpublished story critical of the police–especially in light of reports that suggest his arrest may have been in retaliation for critical coverage of ANC officials in Mpumalanga, particularly Premier David Mabuza.
Mr. President, we welcome government spokesman Themba Maseko’s recent assurances that the government has no plans to “muzzle the media in any shape or form.” The growth of South Africa’s democracy will depend on the government’s acceptance and tolerance of the media’s scrutiny of its performance.
We therefore call on you to amend or shelve the Protection of Information Bill and the Media Appeals Tribunals proposal as they undermine guarantees for a free media and access to information as enshrined in the Constitution, the Johannesburg Principles on National Security, Freedom of Expression and Access to Information and the Declaration of Principles on Freedom of Expression in Africa. We ask that you ensure that any media reform in South Africa is the result of a transparent, consultative process reconciling the interests of government, the ANC, and the concerns expressed by the overwhelming majority of civil society.
Thank for your attention to these important matters. We look forward to your response.