The Law Society of South Africa (LSSA) on Friday expressed concern about the draft Protection of Information Bill and the proposed Media Appeals Tribunal, saying they were “constitutionally suspect”.
The two measures threatened to undermine press freedom, which was a fundamental pillar of democracy, LSSA co-chairs Max Boqwana and Peter Horn said in a joint statement.
The draft Bill and tribunal each had the potential to erode transparency, accountability by public officials, and the public’s right of access to information and media freedom, they said.
The Bill suffered from several defects which rendered it constitutionally suspect and which needed further consideration.
Among other things, it included several impermissibly broad and vague definitions, such as the definition of “national interest”.
It was so broad it could potentially cover every aspect of a citizen’s life.
The thresholds for classification set out in the Bill were unacceptably low and would allow for information to be classified on the basis of harm that was hypothetical and speculative.
For example, a document could be deemed as “classified” if it “may be harmful” to the “national interest”.
The Bill allowed classification of commercial information held by the state, including commercial information belonging to private companies.
This option opened the way for the possible concealment of fraud and other impropriety in relation to commercial transactions.
The Bill also did not provide for an independent oversight mechanism to review classification decisions. It thus left the final decisions in this regard in the hands of state officials who might well have an interest in continuing to conceal certain information, Boqwana and Horn said.
The Bill would further legislate a number of criminal offences, without proposing any public interest indemnity for these criminal offences.
“The result is that the offences will inevitably censor the publication of matters of public interest by the media and others.
“Whereas the LSSA recognises the legitimate need for every government to take steps to protect information that is crucial for national security, such legislation should be narrowly tailored and should not be drafted in a manner that fails to take into account the important role played in a democracy by the media, and indeed every citizen who seeks to expose corruption, nepotism, hypocrisy and maladministration,” they said.
‘External regulation’
On the proposed tribunal, Boqwana and Horn said the LSSA accepted the media had a duty to report fairly, objectively and responsibly.
This was so in view of the powerful position the media occupied in society.
However, the LSSA was greatly concerned about the suggestion that the media required external regulation.
“What appears to be envisaged is a government-appointed ‘independent’ tribunal which would serve as a forum for appealing decisions made by the press ombudsman, and which would be accountable to Parliament.”
The fact that the tribunal would be accountable to Parliament was cold comfort.
Ultimately what this would amount to was government oversight over the media, which could not be countenanced in a democratic state.
It appeared the purpose of the tribunal was essentially to remove self-regulation, which had been criticised on the basis that the appointment of a former journalist as the press ombudsman automatically led to bias in favour of the media.
This criticism was not borne out by the jurisprudence that had emanated from the ombudsman.
The ombudsman had issued a number of highly critical findings against the media and ordered the publication of several prominent apologies, including front-page apologies.
The right of individuals to approach the court in cases of defamation was entrenched and the discussion should actually be how best to utilise this, including accessing lawyers for such acts.
“The LSSA is of the view that the concerns about lack of accountability among certain sections of the media should be addressed by an improvement on the current system of self-regulation together with strengthening of the ombudsman’s powers,” Boqwana and Horn said.
‘Thuggish behaviour’
Meanwhile, Sanef on Friday condemned the treatment allegedly meted out to Sunday Times reporter Mzilikazi wa Afrika by police while in custody.
“[We are] appalled at the police’s refusal at first to disclose any information about the reasons for the arrest and their subsequent contradictory statements,” the SA National Editors’ Forum said in a statement.
The forum was “deeply alarmed” at the initial refusal to allow Wa Afrika to contact his lawyer.
“Indeed, of deep concern is the attempts by the police to spirit Wa Afrika away so that his colleagues and the lawyer could not trace him.”
Sanef criticised the “thuggish behaviour reminiscent of the apartheid state” meted out to him, some of it likely to be unconstitutional and in breach of police regulations.
His arrest was carried out without a warrant being produced, an “uncalled for” number of policemen arrested him and they attempted to prevent photographers from taking pictures of the arrest.
Sanef condemned the Hawks for reinstating the charges against Wa Afrika, after three prosecutors dismissed them on the ground that they had no substance, and the unjustified initial refusal to grant him bail.
“The further development where an original charge of fraud and defeating the ends of justice disappeared and was replaced with charges of fraud, forgery and uttering, indicated remarkable confusion.”
Wa Afrika’s reported questioning by senior police officers, who should know better, at 2am the morning after his arrest was “a tactic verging on torture and reminiscent of apartheid’s detention without trial”.
Sanef called on the Independent Complaints Directorate to investigate the police’s conduct in the handling of his case.
Wa Afrika made a brief appearance in the Nelspruit Regional Court on Friday and was released on R5Â 000 bail.
National Prosecuting Authority spokesperson Mthunzi Mhaga said he appeared with Mpumalanga government official Victor Mlimi. They were ordered to surrender their passports, not leave the country, not interfere with state witnesses and report to their nearest police station once a week between 8am and 8pm.
Mlimi is a deputy director for informal settlements in
Mpumalanga.
Wa Afrika was arrested in Rosebank, Johannesburg on Wednesday, but on Thursday the case was dropped. However, he was not released, and the case was reinstated later that day.
His lawyers successfully applied for his release in an urgent application in the High Court in Pretoria on Thursday night. – Sapa