(FXI/IFEX) – The following is a 19 May 2003 FXI statement: FXI warns about impact of Anti-Terrorism Bill on the media The Freedom of Expression Institute (FXI) has warned of the serious consequences that the proposed Anti-Terrorism Bill (ATB) will have on media freedom in South Africa. In an opinion piece titled “Media must wake […]
(FXI/IFEX) – The following is a 19 May 2003 FXI statement:
FXI warns about impact of Anti-Terrorism Bill on the media
The Freedom of Expression Institute (FXI) has warned of the serious consequences that the proposed Anti-Terrorism Bill (ATB) will have on media freedom in South Africa. In an opinion piece titled “Media must wake up over terror bill”, carried in one of the country’s newspapers, the “Sowetan Sunday World”, the FXI has argued that one cannot fail to notice that in the on-going public debate about the ATB, the manner in which the proposed legislation will affect the media in South Africa appears to have been conveniently ignored.
The FXI has stated that this is particularly worrying given that the media, as custodians of information, play an undeniably significant role in giving society a critical voice and in establishing a platform for the exchange of thoughts, ideas and opinions. Of special concern to the media industry is that privacy of sources and confidentiality, two core pillars that underpin investigative journalism, will come under extremely severe strain.
The ATB proposes to have any person who may have knowledge relevant to the commission of a terrorist offence brought before a judge and ordered to provide the required information. This provision, the FXI has argued, will have far reaching consequences for the media, who in the ordinary course of their work come across material that the state could deem relevant to the investigation of terrorist activities.
By using a procedure dubbed “investigative hearings”, the state will be able to obtain information and material such as records, notes, tapes or documents from individuals. If, after an order has been served, a person fails to appear before the judge, or if the police believe that such person is evading service of the order, a warrant may be issued and the individual could be arrested and detained until the necessary information has been obtained.
The most pervasive aspect of this provision is that a person may not refuse to answer a question or produce a thing unless such is “protected by any law relating to non-disclosure of information or privilege”. To compound the problem, the same provision states that “? no person may be excused from answering a question or producing a thing ? on the ground that the answer or thing may incriminate the person or subject the person to any proceeding or penalty”.
Failure to hand over material or answer questions to the satisfaction of the judge will make the person liable for contempt of court and subject to imprisonment for a period lasting up to five years. Apparently a subtle attempt has been made to mitigate the harsh overtones of this provision by stating that the information or evidence provided cannot be used against the individual in criminal proceedings except for the prosecution of the offence of perjury. The Bill does not say if the person is protected against civil proceedings or even civil claims.
The FXI has pointed out that, as in all the other questionable features of the Bill, such as the rather vague and imprecise definition of what is meant by a ‘terrorist act’ and the extremely harsh bail conditions, the investigative hearings raise crucial issues relating to freedom of expression and the ability of the media to operate without hindrance in this country.
These hearings, which have been pointed to by top state officials as the answer to the otherwise despised option of detention without trial, are in direct violation of the freedom of expression clause of South Africa’s constitution. This is so because even journalists will be compelled to provide information to the state and they will not have an excuse or way out.
The FXI has noted that the provision infringes upon a person’s right to remain silent, violates the right of individuals not to incriminate themselves and contravenes the right of the media to operate freely. Both the language and content of this provision are too wide and are incapable of being narrowed down for the desired purpose of obtaining information that may be important for conviction of alleged terrorists. The supposed exemption of information protected by the law relating to non-disclosure or to privilege would apply to the rare individual like a lawyer or spouse, not a journalist.
An explanatory memorandum accompanying the draft Bill introduced at the end of 2002 talked of the investigative hearings being held along the lines of the procedure provided for under South Africa’s Criminal Procedure Act. This, the FXI has argued, is unfortunately left more to imagination and inference, as it is not explicitly stated in the Bill.
Since its appearance in the late 1970s, the controversial procedure of forcing journalists to appear in court and provide information has been the subject of much acrimonious debate. The Apartheid State regularly invoked it to compel journalists to testify in court, reveal their sources of information or produce material that the police could not lay their hands on through their ordinary investigation processes.
Critics have described this procedure as a relic of the past masquerading as law, which should have exited with the old order. This fact notwithstanding, the procedure has occasionally been used by the new democratic state in attempts to compel journalists to testify in court. The most prominent of such cases is that of photojournalist Benny Gool, who was ordered to appear in court and testify about photographs he had taken during the 1996 murder of Cape Town gang leader Rashaad Staggie. The state was eventually forced to retreat due to sustained pressure and opposition from the media fraternity.
The FXI has argued that although the Constitutional Court has found the procedure to be as narrowly tailored as possible for purposes of meeting the legitimate state interest of investigating and prosecuting crime, controversy abounds regarding why journalists should continue to be denied the kind of privilege accorded to lawyers or doctors in respect of confidential information.
It was as a result of this tension between media freedom and the administration of justice that the South African National Editor?s Forum (Sanef) decided to enter into an interim arrangement with the Departments of Justice and Safety and Security on how journalists? sources and information are to be treated. It was agreed that Sanef would be consulted in all cases where the state sought to compel a journalist to testify in court. The arrangement is yet to be finalised.
The FXI has cautioned that the Anti-Terrorism Bill not only severs the fetters of “just cause”, which even in the days of apartheid afforded journalists some partial measure of protection, but it also vitiates the letter and spirit of the country’s constitution by seeking unjustifiably to sacrifice media freedom at the altar of national security.
The FXI has further argued that in the current international campaign against terrorism, it is not unthinkable that the state would begin to use the proposed anti-terror legislation, rather than other readily-available but less draconian measures, to force journalists to disclose and hand over information and their sources. All it has to do is situate the act or activities being investigated within the confines of the anti-terrorism law.
Finally, the FXI has pointed out that if one takes into account the existence of other laws such as the recently passed Interception and Monitoring Act, which allows the state to snoop on all forms of communications, then the ATB should become a matter of serious concern to media practitioners in South Africa. The fact that in the eight months since this bill’s appearance the media has shown not even the slightest hint of interest creates room for a great deal of concern.
