May 24, 2012, New York Review of Books
The regime of racism in South Africa was maintained not only by brutality—guns, violence, restrictive laws. It was upheld by elaborately extensive silencing of freedom of
expression. The Suppression of Communism Act of 1950 had definitions of communism that were vastly inclusive. What was forbidden included advocacy of industrial, political, economic, and social change.
In 1982 an updated version of the Suppression of Communism Act, the Internal Security Act, was passed, which banned the African National Congress and the Pan African Congress along with the South African Communist Party. It retained almost all of the previous definitions of what was forbidden.
The Publications and Entertainments Act of the apartheid regime banned thousands of newspapers and books in South Africa from 1950 to 1990. The works of world-famous writers, including D.H. Lawrence, Richard Wright, Henry Miller, and Vladimir Nabokov, were prohibited along with the novels and nonfiction works of South African writers, including Todd Matshikiza, Bloke Modisane, Ezekiel Mphahlele, Lewis Nkosi, André Brink, Can Themba, and three of my own novels. Among the taboo subjects of everyday life was sexual relations between white and black. In the 1970s the films Jesus Christ Superstar, A Clockwork Orange, and The Canterbury Tales were prohibited.
In the new South Africa that was reborn in the early 1990s, with its freedom hard-won from apartheid, we now have the imminent threat of updated versions of the suppression of freedom of expression that gagged us under apartheid. The right to know must continue to accompany the right to vote that black, white, and any other color of our South African population could all experience for the first time in 1994. But since 2010 there have been two parliamentary bills introduced that seek to deny that right: the Protection of State Information Bill and the Media Tribunal.
The Media Tribunal is intended to apply to members of the press, both journalists and newspaper owners. It questions the powers of the press’s existing ombudsman and the Press Code (both of which can already be used to challenge whether an article should be published). If established, the tribunal will require journalists to submit to it the subjects they intend to investigate or have investigated and will write about. They must inform the tribunal of these subjects so it can decide whether they pose a threat to state security.
The subjects they must submit to the tribunal are not confined to obvious matters such as defense; military information is already protected by the Constitution from disclosure. Under the new tribunal, any government official, of whatever rank, may charge that the gathering of information pertaining to his or her activity should be an offense.
Moreover, there is an additional gag that can be used to shut any citizen’s mouth, as well as that of the press. This gag is made possible by the wide and detailed definition of security in the Protection of State Information Bill. The bill was passed in the National Assembly last November despite eighteen months of public protest against it by journalists and organizations of civil society. The Secrecy Bill, as it is known, specifies prison sentences for whistle-blowers who expose the rampant corruption by individuals in government, industry, and finance. Recent losses to the state through corruption are more than 30 billion rand a year. The protests against the Secrecy Bill will continue during this year. Civil society organizations, the media—and significantly, the Congress of South African Trade Unions (COSATU)—plan to jointly convene a summit meeting against it.
The government is now using various tactics to “accommodate” wide protest against the bill. Public hearings have been held. Separate submissions of dissent were made by eighteen different organizations including COSATU, the Nelson Mandela Foundation, the Legal Resources Centre, the Open Democratic Advice Centre, and the S.A. National Editors Forum. All were addressed to the National Council of Provinces multiparty committee to which the bill had been sidelined after it was passed by the National Assembly in November of last year. The day it was passed was dubbed Black Tuesday in public protests.
The Secrecy Bill has been and continues to be seen as an obvious means of concealing the corruption that has become a way of South African life for many, from high-placed members of the government down to menial officials. The tender—or bid to carry out government enterprises—has become the currency of much of this corruption. After the government calls for bids on projects from submarines to public buildings, the successful bid gets approved in return for bank deposits that end up in the back pocket of the official who has the power to award the deal. Sometimes the deposit is made to a firm where the wife of the awarding official is a partner. Some nosy person may subsequently reveal that the official himself benefited.
COSATU, which along with the South African Communist Party and the Democratic Alliance is a member of the parliamentary opposition to the ANC majority, gave what a newspaper called a pummeling to the bill in Parliament. The “Corruption Watch” launched by COSATU described in detail how the bill would undermine the fight against corruption. COSATU’s director of alternative information and development said that the government’s response to “deepening poverty and inequality, faltering social cohesion” was
rolling back human rights…. The Secrecy Bill is merely one of a much bigger and problematic effort to centralize power in the security cluster of government.
He was interrupted by MPs objecting to “political and offensive remarks”—one of them saying, “I am not prepared to listen any further to what he has to say if this is his line.” The advocate George Bizos, who defended Nelson Mandela during his apartheid treason trial in 1963, predicted that “if this bill is passed in its present form there will be a long queue of advocates to take the president and minister of state security to court. And it will be a never-ending queue.”
In the past the Constitutional Court has referred laws back to legislators because they had not been subject to sufficient consideration. The government arranged a series of open public hearings on the bill to meet this democratic requirement. But the showcase of hosting the hearings has been used to allow MPs to express vociferous animosity toward the representatives of national protest organizations attending them. One of these organizations, the Right2Know, has gathered statements from members of the public that they were obstructed and harassed when they spoke up at a public hearing. The Right2Know group also has asked for clarification about whether Parliament paid for public transport so that selected people could swell the ranks favoring compliance.
Two South African attorneys, Daria Milo and Avami Singh, remind us of an example familiar to Americans. Top-secret Pentagon Papers released to The New York Times and The Washington Post in 1971 revealed the deliberate expansion of attacks by the US in Vietnam and the systematic lies that four presidential administrations had fed to the public and Congress regarding the war. If the Protection of State Information Bill had been in force in the US, the attorneys said, it “would be a brave editor who would have risked publication.”
The bill calls for the following prison sentences:
Minimum 15–25 years for offense of espionage by a person who knows or ought reasonably to have known [the person’s actions] would directly benefit a foreign state.
Maximum 25 years for receiving information that one knows or ought reasonably to have known would directly or indirectly benefit a foreign state.
Maximum 10 years for harboring or concealing a person such as a confidential source.
Maximum of 5 years or a fine for disclosing classified information.
Maximum 5 years or a fine for failing to report possession of classified information (even if acquired before the bill comes into force).
The first item on the list, espionage, would be an offense in any country. As for the second, however, there are international trade agreements that surely will benefit both a foreign country and the home country, and otherwise would not have been made. Yet receiving information about such agreements is now a major crime.
The right to know would beyond question be virtually gagged for the people of South Africa by the bill’s censorship strictures on the press, both newsprint and other media. But the Secrecy Act also applies anywhere, and by any means, where human concerns and convictions are expressed; it can be used to stifle moral debates about our culture, our complex history, and our present situation. It is appalling to think of the opinions and actions that inevitably will be seen as transgressions of the deafening silence imposed by the bill. Decisions of the government could be hidden from the public under the bill’s parliamentary edict of secrecy. The bill, for example, could stifle the right to explore in public the effects of the new regime of secrecy itself, whether by characters in the theater, or in reflections on our society expressed by characters in novels and stories.
Some serious pragmatists are for accepting the bill but only if issues in which the “public interest” is recognized as legitimate can be excluded from it.
President Jacob Zuma has his own manipulative tactics to ensure that the bill gains legal acceptance. Now he intends to seek changes to the Constitution—recognized internationally as one of the world’s best—on the grounds that what he’s christened the “Second Transition” of the country requires new protection of the state. The first was transition from apartheid; now, he claims, a second is needed for realization of the “Better Life,” in freedom. As if to respond to recent publications emphasizing the supremacy of the Constitution, the need for judicial independence, and the separation of powers between the state and the courts, President Zuma has come out with: “We don’t want to review the Constitutional Court, we want to review its powers.” A few months earlier he complained that the powers of the courts cannot be superior to the powers of Parliament because political opponents should not be able to subvert the popularly elected government by using the courts to “co-govern the country.”
Concerning the powers Zuma now wants, we have the statement of Raymond Louw, the president of the South African National Editors Forum. He has quoted Pritzman Mabunda, president of the Black Lawyers’ Association, who said that Zuma’s “only way is to divorce the current constitutional democracy and remarry parliamentary sovereignty.” Louw explained that
this means parliament would be the ultimate arbiter of judicial decisions…the majority party in parliament would have the power to decide on jurisprudence on political grounds rather than the rule of law….
But I don’t see Zuma climbing down. He cannot interfere with the powers of the judiciary directly because he does not have the required two-thirds majority in parliament to bring this about by constitutional change. That means he has to turn elsewhere. The most obvious move is to look to the…Judicial Service Commission, the body that nominates judges which Zuma appoints…. It [is] estimate[d] that the [ANC] has 14 potential votes among the 23 members composed of judges, advocates, attorneys, members of Parliament and National Council of Provinces…. The Constitutional Court is the last line of defence to preserve press freedom—indeed all our freedoms.
This is the cliff-hanger in which, as I write, we South Africans are now opposing the Protection of State Information Bill and its ancillaries. The final hearing on the bill, which will decide whether or not it becomes law under which we must exist, is set for May 17. Meanwhile there’s a twist of irony in President Zuma’s latest political showmanship. He has set up an inquiry into the corruption blatant among us, while his own long and repeatedly delayed case, in which he is charged with corruption, is about to be heard despite inspired legal dodges to get it dismissed yet again.
I actively supported the African National Congress during the liberation struggle against apartheid; I continue to support the ideals on which the ANC was founded.
I am among the South Africans who believe that the bill must be rejected in its entirety.
If it is passed into law, it is the intention of the Democratic Alliance, the Congress of South African Trade Unions, and the South African National Editors Forum to bring a case against it in the Constitutional Court.
The airing of ideas releases pressures which otherwise might become destructive…. Full and free discussion keeps a society from becoming stagnant and unprepared for the stresses and strains that work to tear all civilizations apart.
—Justice William O. Douglas (dissent in Dennis v. United States, 1951)
—April 24, 2012
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