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Published by: Daily Maverick

The warning signs are there — freedom of expression in South Africa is under threat

December 6, 2023

There are four Bills currently in Parliament which are, directly or indirectly, hostile to freedom of expression. The nature, poor drafting and hostility of Bills towards our rights says a lot about the state of our government and its political intentions.

These four Bills are just some of a wide range of threats to free expression highlighted in a report released this week by the Campaign for Free Expression. Titled The Landscape is Darkening  it points to “several worrying trends, including the impact of systematic corruption and maladministration, a negative approach to rights in legislative proposals and how violence, including targeting killings, is used to limit free expression”.

This negative approach to lawmaking refers to the pattern of tabling poorly drafted legislation which is often hostile to our constitutional rights, and then relying on civil society to highlight the most problematic areas to enable MPs to make just enough changes to hope it avoids a constitutional challenge. These Bills show little coherent intention or policy, as different parts of the state pull in different directions with the malign undermining of our rights shrouded in shoddy drafting.

The General Intelligence Law Amendment Bill is perhaps the most serious, given the propensity our State Security Agency (SSA) has for exceeding its mandate, interfering in political processes and spying on journalists. It is intended to plug some of the holes that allowed the SSA to play such an egregious role in state capture, as highlighted by the Mufamadi High-Level Inquiry into the SSA.

It does the opposite. It gives the SSA new powers to undertake security vetting of “”any person or institution of national security interest”. The definition of national security is so wide that this will enable the SSA to intervene in almost any nook and cranny of our everyday lives. There is insufficient protection against the continued abuse of secret funding and the oversight office, the Inspector General of Intelligence, has little independent to do its work.

In short, it lays the ground for State Capture 2.0.

The RICA Bill, which governs state surveillance of our telecommunications, should be protecting our privacy and limiting the state’s capacity to put groups like journalists under surveillance. The Bill comes about because the Constitutional Court ordered the government to fix elements of the earlier Act they found to be unconstitutional.

The draft Bill leaves a number of openings for wrongful surveillance to continue. There is inadequate protection of the independence of the judges who monitor the process and no adequate system to review poor decisions. In the past, police sometimes put false evidence before the judge in order to get permission to bug a phone. Since the hearing was held in secret, the target of the surveillance could not challenge the evidence.  Now the law will  obligate the authorities to tell you they had you under surveillance when it is over – a major step forward – but without giving the target an appropriate way to test the evidence on which it was based.

The SABC Amendment Bill came out of the blue. More than a decade ago, the government said they would start a process to review the outdated policy and the law governing the troubled organisation, particularly to develop a new funding model to put it on a more secure footing. Without such a process, they have suddenly tabled a law that proposes major changes to the structure – a full separation of the public service and commercial arms of the national broadcaster. On the question of funding, the Bill just promises an inquiry to resolve this within three years. It also has inadequate protections for the editorial independence of the new commercial arm. It is an ill-considered bill that fails to deal with the issues the organisation is facing.

The worst piece of drafting was in the Prevention of Hate Crimes and Hate Speech Bill, which threw out a wide net that could have been used to catch all sorts of contentious speech in the name of countering racism.

Fortunately, civil society climbed in, pointing to a host of contradictions and weakness in the Bill and the version that is about to be sent to the president for signing is much improved. But it still threatens a five-year prison sentence for a widened definition of hate speech, a provision which has the potential to be abused in the future against government critics and dissidents. It is also contrary to the international norm of threatening prison for only the most extreme forms of hate speech.

Perhaps the strangest element is that this law is redundant: the state has been able to use other existing laws to punish or even jail hate proponents. In the build-up to an election, this kind of law is an easy way to score political points and avoid tackling other issues.

It is the pattern of this series of Bills that is most striking – signalling a need for us to be constantly vigilant against a slow but steady encroachment on the free speech that is core to our democracy.

*Harber is executive director of the Campaign for Free Expression.

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