Certainly over the last few years, says Mr. Ndung'u, the FXI has noticed a new trend in South Africa towards censorship, subtle but worrying. For example, the government used the apartheid-era Arms Procurement Act to keep trade negotiations over the controversial purchase of R60-billion worth of arms behind closed doors, out of reach of journalists.
When the Campaign for Open Media and the Anti-Censorship Action Group, both organizations which built up their reputation under apartheid, merged in 1994 to form FXI, one of the organization's first aims was to ensure the repeal or amendment of laws inhibiting freedom of expression, like the outdated Protection of Information Act.
Broadcast Amendment Bill
Since then FXI has also kept on eye on new legislation which constricts the media and freedom of expression in general. FXI played a key role in the negotiations that turned the draft version of the Broadcast Amendment Bill -- which stated South Africa's public broadcaster must check editorial policy directly with the Minister of Communication, and deleted clauses guaranteeing freedom of expression -- into a more reasonable document.
Historically, FXI's image has been centred on safeguarding a free press. However, Mr. Ndung'u says, FXI is trying to open up the definition of freedom of expression to include protecting ordinary peoples' right to communicate, especially to the media.
Last year, for example, the steel giant Iscor obtained a high court order stopping Vanderbijlpark residents from speaking to the media about the pollution of the area. FXI were prepared to challenge the court order in the Constitutional Court, until Iscor finally backed down. That the court was prepared to grant the court order in the first place, contrary to the Constitution, says Mr. Ndung'u, is why South Africa still needs the FXI.
Shift in focus
Since 1997, FXI's longstanding defence fund -- for paying for the legal costs in cases involving press freedom -- has been widened to include any legal case where freedom of expression is on trial. At the same time, South Africa's media relies on FXI's reputation. Mr. Ndung'u gets three or more requests for intervention every week, ranging from the manhandling of journalists by Mpumalanga officials to the arrest of SA journalists reporting in Kenya on the Mombassa terror attack for their "Middle Eastern appearance".
Mr. Ndung'u's daily work reflects a shift in FXI's focus towards educating the South African public about freedom of expression, rather than concentrating solely on intervention. Over the next six weeks, until the Anti-Terrorism Bill comes up for debate in Parliament, Mr. Ndung'u will be conducting an intensive awareness campaign, involving workshops, press conferences, lectures, and culminating in a protest march.
FXI is concerned over how the upcoming Anti-Terrorism Bill, by granting SA's law enforcement agencies too much power, will impact on freedom of expression. For journalists, the consequences of the bill, as it stands, means they will have no choice but to testify in court if called as witnesses, endangering their independence, because they are seen collaborating with the government, and their ethical obligations to their sources.
Section 205
When photojournalist Benny Gool was called by the state, under Section 205 of the Criminal Procedure Act, as a witness in the 2001murder trial of gangster Rashied Staggie by the Muslim vigilante group PAGAD, FXI lobbied until the state finally withdrew the subpoena. Mr. Ndung'u, a lawyer by training, argues passionately about the fine points of Section 205: If a journalist can prove there is "just cause", as in Benny Gool's case, the law states he need not testify. But, the Anti-Terrorism Bill may soon close that loophole.
FXI's Anti-Censorship Program has faced criticism from the head of the South African National Editor's Forum, Matatha Tsedu, for being "too radical" -- there should be room for negotiation on the question of whether the state can call journalists as witnesses or not. So Mr. Ndung'u is looking forward to a media law debate tomorrow at the Pretoria Technikon where both he and Mr. Tsedu are panellists for a debate on Section 205. It's a sign of democracy that they are, at least, debating the exact definition of press freedom.
http://fxi.org.za
Henk Rossouw is a freelance journalist, based in Johannesburg. He has written on Africa for Newsweek, The American Prospect, The Guardian Weekly, The Chronicle of Higher Education, and Zuidelijk Afrika. henk@henkrossouw.com
