Are we just about to witness yet another successful attack on democracy? The proposed Protection of Information Bill is still on the cards and the African National Congress (ANC) is still spearheading efforts to pass it into law.

But where would that leave us as a country and within the Southern African Development Community? The South African Constitution is often hailed for promoting freedom of press and other media. However, if enacted, the Bill will not only make journalists’ job difficult but will ultimately erode any traces of democracy.

Surprisingly, the ANC-led government intends passing this Bill into law and also setting-up the Media Appeals Tribunal (MAT), fully aware that these actions will take away the freedom of the media which is enshrined in the Constitution. In addition, this contradicts former President Nelson Mandela’s view that a critical, independent and investigative press is the lifeblood of any democracy.

But what is the ANC’s justification? According to Prof Jane Duncan, Highway Africa Chair of Media and Information Society, School of Journalism and Media Studies at Rhodes University, “The ANC argues that the press are incapable of regulating themselves, and excessive commercialisation has led to the media pursuing profit at the expense of basic human rights.” Duncan further says that the ANC claims that government has led to a more diverse media landscape, and that the print media remain especially resistant to transformation because they are not state-regulated.

Civil society organisations (CSOs) have already expressed their concerns in relation to the Bill. The South African chapter of the Media Institute of Southern Africa (MISA-SA), the Southern African National Editors Forum (SANEF) and the Freedom of Expression Institute (FXI), describe the Bill as offensive to the constitutional guarantees of freedom of expression and freedom of the press.

Many CSOs, media houses and experts suggest that the harsh jail sentences in the Bill for publication of ‘classified information’ could spell the death of investigative journalism. Some argue that apart from discouraging journalists to report on corruption, the Bill will prevent society from holding government officials accountable.

In a similar vein, the proposed provision will encourage what others call ‘chronic over-classification’ of information. It will discourage people from leaking information that is in the public interest because the penalty according to the Bill is a lengthy jail term of up to 25 years. The other fear is that the Bill does not provide for a public interest defence.

This fear is further reinforced by the fact that the Bill is couched in the same vague terms as Zimbabwe’s controversial Access to Information and Protection of Privacy Act (AIPPA). These terms include; ’national interest’, ’security’, ’state security’ and ‘national security’. These phrases could be open to abuse by officials who can then inhibit access to public interest issues on the grounds that such information needs to be protected. This situation would therefore promote secrecy and self-censorship.

From Zimbabwe’s experiences, I would argue that state regulation of the media is not the way to go. As MISA-Zimbabwe maintains, AIPPA is a repressive piece of legislation enacted primarily to undermine the right to freedom of expression and stifle the exchange of ideas and information.

Under AIPPA, the government is able to control the flow of information, various newspapers like the ‘The Daily News’ and ‘The Daily News on Sunday’ were shut down, while journalists in the private media were incarcerated, harassed and tortured for being critical of the government and/or for publishing information that threatened national security. Since the promulgation of AIPPA in 2002, there was widespread criticism of this legislation by CSOs and journalists that it was violating the provisions in the African Charter on Human and People’s Rights. 

A similar scenario occurred in Botswana through the controversial Media Practitioners Act, which threatens media freedom. While the Botswana government claims that the Act aims to preserve media freedom, upholding standards of professional conduct and promoting ethical standards and discipline, it ironically, undermines these good intentions. I’m of the view that it restricts the media’s ability to report on issues and it has the effect of cowing media practitioners into fear and self censorship.

Should the Protection of Information Bill get passed in Parliament, I foresee an end to the democratic South Africa that we know. This is the second time that this Bill has been tabled before the Parliament. It was first tabled in 2008 and was met with opposition. This time, opposition like the Democratic Alliance have already vowed to fight against the Bill.

Despite all the criticism, the ANC released 'Media Transformation, Ownership and Diversity', a document on the media for its upcoming National General Council (NGC) meeting in September. The document claims to build on a resolution adopted in Polokwane 2007, as well as a media policy developed for its 2002 Stellenbosch conference. The 'Media Transformation, Ownership and Diversity' raises the possibility of establishing a statutory MAT to be accountable to Parliament.

If everything goes according to the ANC’s plans, then South Africa is trailing in the direction of numerous other African governments which have failed to maintain democratic societies. It will be goodbye to the democratic notions of accountability and transparency and a welcome to an ill-informed population.

All hope now lies with civil society, opposition parties and experts to fight against this evil legislation.

-    Simisosenkosi Ndlovu is International Human Rights Exchange Programme intern at SANGONeT.