New media law threatens freedom of expression in South Africa

Shaun de Waal, a leading film and literary critic at the Mail & Guardian (Johannesburg), reports on some key developments in South Africa today. Seventeen years after the end of apartheid and fifteen years after the passing of the world's most progressive constitution in 1996, South African politics hangs in the balance. Draconic media and “secrecy” laws have been drafted by the ANC, the Constitutional Court risks being co-opted by government interests, and the furore around Julius Mulema has strengthened a culture of populist simplification at the cost of principle-driven politics. At the heart of these developments, de Waal shows, lies the indispensable, vulnerable yet still resilient freedom of expression.

September 22 2011 Shaun de Waal

It feels like South Africa is standing at a crossroads, or is swimming in the middle of a river with different currents pulling different ways. At the literary festival of the Mail & Guardian, the newspaper I work for, last weekend, there was much discussion of “the Johannesburg moment”, in reference to the city where we are based — the biggest city in the country, the generator of its economy, a city about to turn 125 years old.

Some people spoke about the kind of “moment” represented by the violent protests outside the headquarters of the ruling party two days before the festival began: this was a protest of the youth wing of the party, against its own mother body, because ANC Youth League head Julius Malema has been called before a disciplinary committee for statements and actions seen to be against the policy and ethos of the ruling African National Congress.

For the first time in South Africa since the ANC came to power in the country’s first fully democratic elections in 1994, one faction of the ruling party is openly and noisily challenging the senior leadership. Youths, genuinely affiliated to the ANCYL or not, threw stones, looted shops and clashed with police right outside Luthuli House, named for the great and revered ANC leader Albert Luthuli.

Comparisons have been made with the “Arab spring”, in which younger people contested the heavy, repressive rule of the older generation and the spoils of power it had accrued. In South Africa, the ANCYL claims to stand for the poor and marginalised (including the young people of the country, at least half of whom are unemployed), while the elders of the party protect and benefit from a crony-capitalist system that keeps the poor in poverty. Of course the motives of the political players open to question, but this “moment” certainly makes more vivid this fault line in a society in which huge inequalities persist. Since the end of apartheid there is no formal legal inequality based on race, but economic inequalities persist and have in some ways become worse.

At the same time, though, other key moments in the life of South Africa’s 17-year-old democracy were unfolding elsewhere — and they were not comforting. In Parliament, in Cape Town, the ANC “finalized” its new Protection of Information Bill. This means that, as far as the ANC is concerned, it is ready to be put before Parliament and voted on. Nobody doubts it will be made law, because the ANC has the majority in Parliament. There have been months of negotiation over what has been dubbed the “secrecy bill” between the ANC and opposition parties in the relevant parliamentary committee drafting the law, and many clauses have been rewritten, but the ANC has not budged on the most controversial element of the bill. That is, there is no public-interest defence for the publication of information deemed “classified” by state officials.

The lack of any such defence means, in particular, that investigative journalism looking into the financial affairs of politicians will be criminalized. Whistle-blowers, or those who reveal information about government deals and tenders from within such groups, will be under enormous pressure to keep quiet. Editors of newspapers and other media who publish such information, if “classified”, will be subject to punitive action such as jail sentences. This is a hot topic because so much information has come out about the corrupt dealings of state and party officials, to the degree that corruption is now seen as endemic in government and a serious block to any real economic and social development in SA. The area of state tenders, in which huge amounts of money are spent on infrastructure and other sate projects, is the area in which such corruption flourishes. Many more officials would be empowered by the law keep such information secret, so it’s not surprising that some say the law is practically a charter for corruption.

It has rightly been commented that such a restrictive law is more reminiscent of the apartheid regime than it is of the liberation movement that the ANC used to be, or of the liberal-democratic Constitution of 1996 that establishes the rights of South Africans. Among those rights are the right to information, and it is widely held that the Protection of Information Act will clash with the Access to Information Act, which was promulgated in 2000, a year after Thabo Mbeki succeeded Nelson Mandela as president of the republic.

There is no doubt that the “secrecy bill” is a reactionary move on the part of the ruling elite, and the law will probably be challenged in the Constitutional Court. But that brings us to another “moment” that was unfolding even as literary, social and political discussions took place at the festival in Johannesburg’s beloved Market Theatre. A thousand miles away, in Cape Town, the Judicial Service Commission, the state body mandated to appoint judges in South Africa, was interviewing Justice Mogoeng Mogoeng, President Jacob Zuma’s sole nomination for the highest judicial office in the land: chief justice.

Apart from his vital role in managing the upper echelons of the judiciary, the chief justice will sit on the Constitutional Court bench and hear cases that test the human-rights culture of the new, democratic SA. He, along with his colleagues, will pronounce judgement on important issues such as, in fact, the hugely controversial “secrecy bill”. The chief justice will also help appoint new judges, and there are several new judges to be appointed in the immediate future.

The nomination of Mogoeng has been the subject of fierce debate and contestation, with various submissions to the JSC by civil-society bodies arguing that he is unfit for the office. He is seen as socially and politically conservative, possibly out of tune with the Constitution on gender and other issues, and lacking in intellectual gravitas. Much argument has taken place over Mogoeng’s attitudes towards rape and homosexuality, for instance, and the fact that he is a pastor in an evangelical-Christian sect. He is now famous, as weekend newspaper headlines had it, for saying that he trusted it was God’s will that he become chief justice — and on Sunday he was appointed to the job by the JSC.

But the real issue is what the presidency expects of this particular chief justice. The president made only one nomination for the position, and named a relatively junior and unknown judge at that, while at the same time bypassing the politically independent deputy chief justice, Dikgang Moseneke. Is the president and the executive trying to make sure there is a relatively pliable chief justice at the head of the judiciary?

Time will tell. At the same time, in the Malema disciplinary hearings in Johannesburg, it would seem that Zuma is stamping his authority on the ANC ahead of its elective congress next year. The ANC will also be celebrating its 100th anniversary in 2012, so there will be a lot of attention paid to the national conference in Mangaung, where the ANC was founded (as the Native National Congress) long ago when it was just called Bloemfontein. This is where Zuma will win or lose the first stage in his bid for a second term as president of the ANC and thus the country, and he has clearly woken up to the fact that the ramshackle alliance that brought him to power in 2007 has fractured and is engaged in vicious infighting ahead of the next leadership contest.

Likewise, it looks as though the ruling elite has decided to clamp down on the pesky media that has embarrassed it by revealing politicians’ shady dealings, their romantic affairs, or just their extravagant spending on luxurious lifestyles. The whole South African polity has been infected by the charges of corruption that attach to the huge arms deal of 1999, a still-unresolved cancer in our politics. Zuma himself has been dogged by charges of corruption, which he fought a very long battle to keep out of the courts, as well as a trial for rape (of which he was acquitted), and was subjected to public opprobrium when it was revealed by the media that he had fathered a child with a woman half his age. (He already has four wives, at least one fiancée, and about twenty children — some of whom are now part of a super-rich business class.)

Over the past 17 years, South Africa has suffered scandals to do everything from the state oil body and party funding to the millions improperly spent by parliamentarians on travel expenses. Today, many corruption cases are being investigated, denied, debated, and dragged through whatever legal processes there are to deal with such issues: the Public Protector has declared billion-rand deals on police buildings to have been improper; several politicians, businesses and funding bodies are under investigation; and newspapers are shouting about issues from the tens of millions in taxpayers’ money spent on houses for various politicians — this while the country faces an overall unemployment rate of upto 40% and while state medical, education and other services collapse.

It seems the political elite of South Africa is seriously embarrassed by such accusations, maybe fearing an eventual electoral backlash. As well as the contentious Protection of Information Bill, the ANC has called for a media appeals tribunal, which would be a separate, state-mandated body able to punish the media for revelations it deemed unethical. The noise around this proposed tribunal has recently died down, perhaps because the present focus is on the “secrecy bill”, the judiciary and the party’s internal power struggles. But it may come back, because it certainly does look like the ANC, or at least its ruling faction, feels threatened by and is determined to restrict the freedom of South Africa’s media.