The Films and Publications Amendment Bill has passed through the two houses of Parliament and is waiting for President Thabo Mbeki's signature before becoming law. But it is a sinister and ill conceived piece of legislation and the president would be well advised to refer it to the Constitutional Court for an opinion on its constitutionality.

The bill is ostensibly aimed at curbing child pornography. But the way it attempts to do so makes little sense. It also threatens media freedom and freedom of expression in South Africa.

Under the bill, it is an offence to publish:

• propaganda for war
• descriptions of sexual conduct
• incitement to violence
• hate speech

Any material that could fall into any of the above categories must be submitted, prior to publication, to a censorship board for classification. This provision initially applied to all publications, including newspapers. Successful lobbying on the part of the South African National Editors Forum has seen certain South African newspapers exempted from this pre-publication restraint.  However, thousands of other publications remain subject to it.

At issue is whether the provisions of the bill are at odds with section 16 of the Constitution. This guarantees freedom of expression and expressly provides for ‘freedom of the press and other media'. The freedoms guaranteed under section 16 also include the freedom to impart information or ideas and freedom of artistic expression

These freedoms are subject to conditions, and thus do not extend to propaganda for war, incitement of imminent violence, and advocacy of hatred.

At first glance it seems that the bill may thus be in line with the provisions of the Constitution. But closer examination brings many questions to the fore. What amounts to propaganda for war? Would reporting on George Bush's reasons for invading Iraq qualify as publishing propaganda for war?

What constitutes incitement to violence? In Zimbabwe Robert Mugabe routinely describes political activity and campaigning by the opposition as incitement to violence.  In South Africa, should the media be banned from reporting on any repetition of recent statements inciting violence by senior leaders of the ruling party?

In the context of Jacob Zuma's rape case, would the bill (if then in force) have prevented the media from publishing reports featuring sexual conduct?  The ANC and the Jacob Zuma himself might certainly have interpreted the bill in this manner.

The Constitution itself states that it is only incitement to imminent violence that is unprotected by section 16. Since the bill goes further than this, its terms exceed what the Constitution allows. In addition,its provisions are ambiguous and open to a variety of subjective interpretations.

There are obvious risks in adopting legislation open to such broad and subjective interpretations. That risk is accentuated when the legislation deals with one of the most basic freedoms guaranteed under the Constitution. The risk is compounded in an environment where the ruling party and the government often find themselves at odds with the content of media reporting. 

Recently the Sunday Times ran a cartoon of Jacob Zuma preparing to rape ‘justice'. That cartoon could be seen as containing incitement to violence, description of sexual conduct, and elements of hate speech against women, black men, or both. It could also be seen as doing the opposite. On balance it was a telling political comment on recent threats to the justice system emanating from senior figures in the Zuma camp.

If the bill is signed into law the government may be able to ban speech that deserves constitutional protection in a free and open democracy. Editors of non-exempt publications will know that costly legal wrangles with the classification authorities could be financially crippling. They will therefore tend to engage in self-censorship, preferring to leave out material rather than submit it for approval. They will also tend to accept bans imposed rather than contest whether the material in question truly falls foul of the statute. 

The law will thus provide a tool whereby the state can effectively ban noncompliant publications and bring others to heel through financial pressures and self censorship. 

South Africans therefore have to ask if they need this kind of protection from published material. Their government certainly suggests that they do. But if they do not feel threatened by cartoons featuring the leader of the ruling party, or by the publication of George Bush's reasons for going to war, then they should ask whether they want to give the government a mandate to decide for them whether such material should be published or not.  I believe that few would be willing to give the government such censorship powers. 

There are various other bills in the offing that South Africans have reason to question.  The now shelved Expropriation Bill, which threatens to unsettle the property rights of every citizen, is one such measure.  Yet there are very few organizations actively lobbying against bills that, if enacted, are likely to curtail important freedoms.  Many of those organizations are stretched to the breaking point, in terms of their human resources and finances, in seeking to warn against  such measures.  In some cases individuals, such as Hugh Glenister, have gone to extraordinary lengths, at great personal cost, to prevent the adoption of laws with serious negative ramifications.

Our Constitution guarantees a free and open society in which individual liberties are the birthright of all South Africans. Where the government shows signs of infringing on those liberties, there is reason for concern.  South Africans would be well advised to be more alert to what their government is trying to pass through Parliament or they may live to regret their complacency - just ask the Zimbabwean you see begging at your local traffic light this evening.

This article first appeared in SAIRR Today, the weekly online newsletter of the Institute of Race Relations, September 12 2008