The ANC is about to launch a double-barreled attack on the South African press. One barrel is The Protection of Information Bill and the other a statutory Media Appeals Tribunal. Both Bills have been described as "terrifying" and "sinister". The question is: why is the ANC doing this?

An ANC paper on the future of the media in South Africa will be discussed at the party's National General Council meeting in Durban on September 20-24 (see here.) Clumsily edited, needlessly long (22-plus pages), it makes a pretence at academic detachment and then hardens its language as it proceeds, revealing increasingly how the ANC with its impeccable "democratic" credentials intends to muzzle the press.

Among the proposed instruments will be the (a) Protection of Information Bill; (b) creating the Media Appeals Tribunal as "an independent statutory institution" under direct parliamentary jurisdiction to do the ANC's censorship work for it; also, handling complaints from the public for whom libel actions against the press in the courts are "too expensive"; (c) reshaping the media's "ideological outlook" so that it contributes to the ANC's "transformation" programme - creating a Media Charter should be considered; (d) and, breaking up the present media ownership and control and put the brakes on "unbridled capitalism".

Most governments exist in perpetual tension with the media. Some confrontations result in periodic showdowns; others go to the brink; yet others impose outright censorship. The apartheid government (1948-1994) wavered on the brink of outright censorship, but compromised by hitting small newspapers harder than big ones. As for the ANC, it complains endlessly about the press, but has not yet gone as far as the apartheid government went. Now this is changing.

Under apartheid, the National Party government brought in numerous anti-press legislative and other measures. One of the most effective was to introduce provisions so vague that newspapers had to fall back on self-censorship to avoid prosecution. Allister Sparks, then editor of the Rand Daily Mail (itself hit by the Prisons Act), explained:

"Frequently we have information which we suppress, in order to err on the side of caution, because we are not quite sure how these vague laws are going to be put into effect. The Prisons Act (1959 and 1965) is a case in point. There is no newspaper in South Africa today (the apartheid era) that will publish any information about conditions in prisons unless it comes from the Department itself."

The NP government's war with the media is described in books such as The Newspaperman's Guide to the Law (Kelsey Stuart and Weston Klopper; Mainpress Books; JHB) and The Press and Apartheid (William Hachten and Anthony Giffard; Macmillan 1984). Among the editors and journalists who have written incisively on the trials of the press in South Africa are Joel Mervis, Raymond Louw, Allister Sparks, Gerald Shaw, Richard Steyn, Anthony Heard, Benjamin Pogrund, Harvey Tyson, Rex Gibson - many others.

It was in the 1980's that the NP government, in manic anti-press mode, went to the brink of outright censorship.

First, the 1980-82 Steyn commission reported on whether the handling of matters by the mass media met the needs and "interests" (there's that word again) of the South African community and the demands of the times; if not, how they could be improved. Steyn recommended registration (licensing) of all journalists, and even a special council to control their enrolment.

It is to the credit of the media that not a single journalist, English- or Afrikaans-speaking, agreed to serve on the five-man commission. This alone confirmed what the NP already knew - that its own intelligentsia was repudiating it. Yet it chose to ignore the warning signs. In June 1982 it introduced the Protection of Information Act (imposing wide restrictions on the public's right to information) and the 1982 Registration of Newspapers Act.

The ANC is now in similar manic mode, ready to use ambiguity to a point where, as a government, it could easily make the transition into full censorship. Its Protection of Information Bill, awaiting a National Assembly vote, would replace the NP's 1982 Act. It's ironic that, given the same name, it implies that the 1982 NP government under President PW Botha is an acceptable role model. The ANC is also fine tuning the media tribunal.

Clearly, what has escaped the ANC is that the 1980s were the decade in which the NP government collapsed (its formal burial was in1994 when the ANC took over). The ANC just does not recognise the symbolism: that in becoming manic over the press, it too risks dying. Even some African journalists are hinting at this.

Writing in these columns about the Protection of Information Bill, Dave Steward (executive director of the FW de Klerk Foundation) says: "Any government information can be classified if disclosure would be harmful to the "national interest". Classification embraces almost anything. One example, says Steward, is that potentially "problematical" parastatals like Eskom (electricity) and SAA (airline) "can be removed from public scrutiny." There is also the drive by a faction in the ANC Youth League for the mining industry (not just mineral rights) to be nationalised and privately-owned land seized.

The critical point is that 'classification' includes commercial information in the government's possession (including tenders) if disclosure is thought to endanger not only the "national interest", but also the interests of organisations or individuals. By "individuals" is meant you-know-who: tenderpreneurs who make millions through political contacts who steer business to their or other companies. Such "individuals" would be protected by the classification clause.

Where would a journalist obtain information about a tender? Likely from a whistle-blower. As Steward notes, the Bill "will further intimidate whistle-blowers and journalists".

According to Justice minister Jeff Radebe, Section 205 of the Criminal Procedure Act and other provisions affecting journalists are being finalised to force journalists to reveal their sources. Anonymity is no protection: the whistle-blower may get away with it, but the journalist would be nailed.

This is mind-blowing. A protective barrier is to be built around the whole corrupt tender process. And the more the current debate about nationalisation or privatisation continues, the more likely is the spectre of an entirely new catchment area of corruption appearing. This could be the Arms Deal Part Two. Who outside an elite circle would know what was happening? The information would simply be "classified".

Some of these anti-press ideas were debated at the ANC's Polokwane conference (December 2007). Now it appears they are to be rushed through the National Assembly. There is a sense of impatience, even desperation.

Is this because the time has come to sort out the whole question of nationalisation and privatisation, so that the aspiring generation of would-be millionaires can make their moves now?

In a perverse way, this recalls Tennyson's 1854 poem on The Charge of the Light Brigade (Crimean war). The ANC's brigade will not ride "Into the Valley of Death," as the 600 did, but into a mountain of wealth. Spurring them on will not be the sound of hoofbeats, but the purr of BMWs. Meanwhile the other 37 million Africans, many of them poor, will remain helpless onlookers. Ironically, the SA Communist Party is said to support a media tribunal - the same SACP that for decades has posed as the ultimate repository of integrity in South African politics.

Is this why the ANC is prepared to go this far in a country already drenched in corruption? Is this what is propelling it to be so brazen, knowing (as it must) that in most, even semi-democratic, countries to tamper with freedom of the press is to trigger unexpected consequences, even provoking shoot-outs in the ruling party itself?

Lawyers, analysts and others are confident the Constitutional Court will strike down such an elastic concept as "national interest". They assume continuity of the court's integrity, or expect the ANC to water down the secrecy Bill before tabling it in Parliament. The chief state law adviser, however, insists the Bill is fully constitutional and that ‘public interest' will remain. Radebe, too, insists any new law will be ‘in conformity with the constitution".

Such official assurances are all very well, but what happens when governments find themselves on the borderline of unconstitutionality?

As the ANC closes its legislative noose, it warns the press to submit quietly. ANC secretary general Gwede Mantashe says editors and media institutions (including the web?) who adopt a "laager" and "defensive" approach do so "at their peril."

Even more outspoken than Mantashe is ANC national spokesperson, Jackson Mthembu, who thinks the existing Press Council and Ombudsman are "a recipe for disaster." He too assures the media that the ANC will not tamper with the constitution, but in the next breath asserts: "We are the authors of that constitution".

"We"? The ANC? Unless South Africa has lost its collective memory, the author was Codesa (The Convention for a Democratic South Africa), representing 19 groups, led by the governing National Party and the incoming ANC. Mthembu's take on this is that the state and the ANC are identical twins.

Mthembu warns that media reports on the luxurious life-style of cabinet ministers and officials "don't go down well with the ANC"; that regrettably there are no existing sanctions to deter "smears"; and that "ordinary" South Africans have no recourse if they are defamed - the courts are too expensive. Therefore the state has to intervene to provide protection.

But we are not talking about ordinary South Africans, are we, Mr Mthembu? We are talking about ANC members, ministers, officials, millionaires. The state will ban the press from "smearing" them, even if what is viewed by the ANC as a "smear" is seen by the press and the public as exposing fraud, or "luxurious lifestyles", or "wasteful" spending, or breaches of political ethics.

Mthembu continues: "If journalists have to be fired because they don't contribute to the South Africa we want, let it be."

For as long as Mthembu is there, inadvertently revealing what his bosses want concealed, maybe there is still a slender hope for a free press. 

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