IFEX - News from the international freedom of expression community
_________________________________________________________________

PRESS RELEASE/UPDATE - SOUTH AFRICA

22 May 2003

FXI warns of Anti-Terrorism Bill's impact on the media

SOURCE: Freedom of Expression Institute (FXI), Johannesburg

**Updates IFEX alerts of 1 May and 19 February 2003**

(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.

For further information, contact FXI at P.O. Box 30668, Braamfontein, 2017,
Johannesburg (Street Address: 5th Floor Argon House, 87 Juta Street,
Braamfontein, Johannesburg), South Africa, tel: +27 11 403 8403/4, fax: +27
11 403 8309, e-mail: [email protected], Internet: http://fxi.org.za

The information contained in this press release/update is the sole
responsibility of FXI. In citing this material for broadcast or publication,
please credit FXI.
_________________________________________________________________
DISTRIBUTED BY THE INTERNATIONAL FREEDOM OF EXPRESSION
EXCHANGE (IFEX) CLEARING HOUSE
489 College Street, Suite 403, Toronto, (ON) M6G 1A5 CANADA
tel: +1 416 515 9622, fax: +1 416 515 7879
alerts e-mail: [email protected] general e-mail: [email protected]
Internet site: http://www.ifex.org/
_________________________________________________________________