ONE would be hard pressed to find a government that would say it likes the press or enjoys the kind of scrutiny the press subjects it to. Yet it is equally difficult to find a democracy that is attempting to emasculate the media in the manner in which the South African government is doing with the Protection of Information Bill and the punitive media tribunal it wants to introduce. And although SA is not alone in fighting the free flow of information, it stands out as a country that is sliding backwards at a fast pace in its bid to make public information its own private property.
Consider some of the defining features of authoritarian tendencies in media law, which London-based author and academic Tim Crook writes about in his latest book, Comparative Media Law and Ethics.
A jurisdiction that leans towards authoritarianism practis es "absolute or near total secrecy and suppression of all information relating to intelligence, police". Its "free- speech rights are qualified by rights of national security".
It doesn't believe in "guaranteeing public access to information collected and stored by government/state bodies".
It is a country that imposes "criminal liability on private citizens and journalists who received state information where the classification of confidentiality and secrecy is broad and all-encompassing".
And there's more. Its "ruling elite" buys into the media market "to silence and discourage critical reporting". It's a place where "heavy penalties" are handed down to journalists who "try to protect their sources".
It is also a country that grants "wide powers for state agencies to tap communications of journalists and collect surveillance evidence for the purposes of identifying their sources" and practices "overt and covert . attacks on journalists working for media institutions that publish critical coverage".
If all that sounds familiar, it's because it reads as if it was lifted chapter and verse from the latest government proposals.
The sad feature of Crook's work, however, is that while SA sits firmly in the libertarian camp today, it will find itself lumped on the authoritarian side of the fence tomorrow if the government succeeds in clamping down on freedom of expression.
The other alarming fact, though, is that the South African proposals are the best kept secret in the international arena of media law experts, anticensorship groups or institutions that protect the purveyors of information themselves. When the draft bill was circulated last week among experts in Canada, Israel, the UK and the US, their reactions were not surprising.
"The proposed bill is draconian," says Mibi Moser, a renowned media lawyer in Israel, where limitations on the media are already stringent because of the country's geopolitics and the constant tension between the military and the executive. In comparing the South African bill and current Israeli legislation, he highlights SA's broad definition of "state information", as well as the reasons for not disclosing such information as enormous causes for concern.
Israeli law puts the emphasis on the right of the Israeli citizen to have access to public information, he points out. But the emphasis in the South African instance is the reverse "and it is frightening". But "the most arousing cause for concern", in his appraisal, are the proposed "severe penalties for obtaining, collecting, capturing or copying all kinds of 'state information'."
It's a view echoed by Prof Klaus Pohle, a media law specialist at Canada's Carleton University. "This is something you might expect in a totalitarian banana republic," he argues. However, it's the arbitrarily defined terms of "public good" and "national interest" that unsettle Pohle most. While Pohle concedes that most western democracies - Canada included - have legislation that errs on the side of national security, which is often poorly defined, it is never "as ill defined as (SA's) description of the national interest".
"Among the enumeration of what is meant by the national interest is the public good", which is "vague and subjective.. This section should be the most worrying since it can include anything," he says. "Any criticism of public policy, governmental activity or even private commercial activity may be seen as an attack on the public good."
Imagine trying to debate the previous South African government's so-called AIDS denialism under the proposed legislation, he suggests. It just wouldn't wash because it would be undoubtedly seen as an attack on the public good. But would silence then have been helpful? Surely not.
Or take the example of the Gulf of Mexico oil spill. Had it happened in SA, "one could easily assume that assigning blame, however much warranted, may not serve the public good because it might disturb relations between the developer and the state" under the proposed bill, he points out.
"It might even be illegal to discuss critically the contents of this very bill," he says. Or the arrest of Sunday Times journalist Mzilikazi wa Afrika, for that matter. Not to mention corruption on the part of public servants and government officials. Or the lack of service delivery. The list goes on.
But the question that rolled off most tongues was why SA would want to go down this route at this time.
The answer is quite simple. Our political elite is feeling very insecure and threatened, not by a lack of security, but by what the free flow of information might do to their ever- closing political system, and so has decided to drag the young democracy in the direction of such countries as China, Saudi Arabia, Venezuela and Russia.
Joel Simon of the New York-based Committee to Protect Journalists says governments everywhere are becoming more sophisticated about the strategies they use to control the media.
"Increasingly, legal pressure, advertising boycotts, punitive tax raids, libel suits and other less visible means are replacing imprisonment and state-sanctioned violence," he says.
This is true of China, where a journalist is more likely to be fired than jailed for critical reporting, he says. "And in nominally more open countries, such as Russia, where the Kremlin has used tax raids to take over critical media outlets."
(In SA, it seems, the preferred practice is still arrest.)
Simon balks at the proposed media tribunal, which he sees as a pathetic attempt to control criticism and dissent.
Yet if the litmus test of real political authority and power is the ability to withstand criticism, then why doesn't "the African National Congress (ANC) muster the maturity and the courage that is required to lead without resorting to these kinds of measures?" Crooks asks. "Don't they see that they would also amass a considerable amount of power in the world if they did?"
Clearly not. Instead, the ANC is about to dispose of all the political dignity it has left.
For the past few years, SA has found itself languishing among the flawed democracies of the world in the index of democracies compiled by The Economist's Intelligence Unit (EIU), scoring just shy of what is required to join the world's full democracies.
It was hoped that this year SA would crawl up into the category of the world's best.
"But if these media proposals become practice, SA will be downgraded, not upgraded," says Pratibha Thaker, regional director of the EIU's Africa department.
- Forde is a freelance writer.