This is the third part  of a speech delivered on Press Freedom day, 19 October 2012 at Wits University.  The first part was posted on Wednesday 24 October 2012 and the second part on Thursday 25 October 2012.

The first threat I want to talk about is the use of apartheid era security legislation by members of the executive to stifle transparency and accountability. 

The case in point is of course the revelation by the press that a cost of R250 million has been approved by the state for upgrades to Nkandla, President Zuma’s private home.  The Public Works Minister’s (Thulas Nxesi’s) response to the exposé was twofold: to call for the City Press which first broke the story to be investigated for the crime of unlawfully possessing a “top secret” document; and to refuse to answer questions about the Nkandla funding because it had been declared a “national key point” and no security details could therefore be released.

Both of these propositions required the minister to dust off apartheid – era legislation: the Protection of Information Act of 1982 and the National Key Points Act of 1980.  Well, the minister could not have chosen worse legislation to invoke.

When the National Key Points Act was introduced into parliament, the deputy minister of defence justified its draconian provisions as follows, according to the Hansard of 12 June 1980:

“In the light of the prediction relating to the escalation in the incidence of terrorist onslaughts, attention has been given for some time now to the improvement in streamlining of security measures. … At the moment the Republic of South Africa finds itself in the midst of an unconventional war which up to now has been of relatively low intensity. However it may be expected that in future the terrorist onslaughts will increase both in frequency and intensity”.

This is hardly the type of legislation I would want to be relying on if I were in the minister’s position.

In any event, the Act prohibits the furnishing of information “relating to security measures applicable at or in respect of a National Key Point” or “any incident that occurred there”.  Even this broad wording doesn’t seem to plausibly cover an explanation for the funding of Nkandla, and the sums involved.  No-one is asking for the secret plans to the Nkandla underground bunkers, we simply want to know why taxpayers’ money is being spent on the upgrade, how much is being spent, and what it is broadly being spent on.  This is information to which the public is entitled.  The attempts to cloud the issue with the secrecy of the National Key Points Act are ill-conceived.

As for invoking the Protection of Information Act of 1982, the minister of public works need have looked no further than the speech of his colleague, the minister of state security Siyabonga Cwele, in introducing the Protection of State Information Bill into the National Assembly last November.  In that speech, Cwele recognised the major shortcomings of the 1982 legislation. As the minister said, the 1982 Act is an “apartheid law which must be set aside”.

This point leads me to the second threat to media freedom, and it flows from the first: the overzealous use of criminal laws to chill free speech.

We have already seen in the last two years the arrest on trumped up criminal charges, and the telephone interception by the Hawks, of the investigative journalist, Mzilikazi wa Afrika, after his exposé in the Sunday Times of the police headquarters lease scandal.

And this year we witnessed the editor of the Mail & Guardian, Nic Dawes, and investigative journalists Sam Sole and Stefaans Brummer, being investigated after criminal charges were laid by the president’s spokesperson, Mac Maharaj.

The charges relate to what Maharaj claims is a contravention of a provision in the National Prosecuting Authority Act which prohibits the disclosure of a transcript of evidence given by Maharaj and his wife at an NPA enquiry related to the arms deal in 2003.  And this in circumstances where the newspaper in fact went to great lengths not to disclose the transcript in its publication.

These types of threats of criminal prosecution will be exacerbated if the Protection of State Information Bill is passed into law in its present form.  It will be recalled that almost a year ago, the National Assembly by a majority of our MPs passed the Bill without either a public interest or a public domain defence.  The Bill is now before the National Council of Provinces.

Without a public interest defence, the City Press journalists who broke the Nkandla story would be facing jail time of up to 10 years for possessing and disclosing classified information, being the top secret memorandum revealing the substantial cost of the upgrade at taxpayers’ expense.

Without a public domain defence, all the journalists who repeated the revelations about Nkandla based on the classified information will similarly have committed offences; and so would I for making reference to it in my speech today.  We would all be facing potential prison terms of up to 5 years.

Under the Secrecy Bill, what the City Press should have done is clear: they should have returned the document to their nearest police station, or the State Security Agency, and, proponents of the Bill would say, they can always formally request that the document be declassified, and they can then publish.  What’s the big deal?  Ominously, this sounds very similar to the response given to the opposition in parliament in 1980, in the National Key Points Bill debate. In answer to an observation by Harry Schwarz of the official opposition, the Progressive Federal Party, that the Bill would prevent a newspaper from publishing even that inadequate steps in relation to security had been taken at a national key point, or that smoke was seen at a national key point, the answer from the apartheid government was that this concern had no merit: “What the newspaperman should do is go to the Minister and ask for his authority to publish that information”.

To be sure, the ad hoc committee of the National Council of Provinces appears to have made some very important improvements to the Bill, but the ruling party’s representatives have stopped short of including the crucial public interest and public domain defences.  Without these defences – which will not only inure to the benefit of the media but to all whistle-blowers exercising their patriotic duty – it is plain that the severe criminal sanctions the Bill contains will create a chilling effect on freedom of expression, which will impoverish our public discourse.

Conclusion

Now these two threats that I have spoken about today are clearly not the only threats to media freedom and the public’s right to know.  There are many others, and they vary from the possible investigation by parliament of a Media Appeals Tribunal which would regulate the print media, to rules of criminal procedure about publishing the identities of those accused of certain crimes.  And let us not forget the chilling effect that emanates from non-legal sources, such as the intimidation and bullying which was witnessed in the aftermath of The Spear saga.

But I take great solace in our courts, and so should you.  It is the courts, after all, who have the final say in matters of media freedom.  It is perhaps appropriate to end with the words of the Constitutional Court expressed just three weeks ago:

“In considering the comprehensive quality of the right [to freedom of expression] one also cannot neglect the vital role of a healthy press in the functioning of a democratic society.  One might even consider the press to be a public sentinel, and to the extent that laws encroach upon press freedom, so too do they deal a comparable blow to the public’s right to a healthy, unimpeded media”.

Dario Milo is a partner at Webber Wentzel and visiting associate professor at Wits University.