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South Africa: PEN joint submission to the UN Universal Periodic Review

Thursday 6 April 2017 - 1:00am

Ahead of the human rights review of South Africa’s human rights record at the UN’s Universal Periodic Review (UPR) in May 2017, PEN South Africa, PEN Afrikaans and PEN International submitted a joint report outlining our concerns about the situation of free expression in the country.

“The state of freedom of expression in South Africa continues to be uncertain. Whilst it is clearly defined and vigorously defended in the country’s Constitution, it is threatened by the growing tentacles of the state security agencies, and by direct and covert attacks against independent media and journalists. Worryingly, growing evidence of coordinated mis-information campaigns, to further partisan political ends using fake Twitter and Facebook accounts, has seemingly been uncovered. It must be noted, however, that unlike many other countries in the world, critics of the ruling party have ample access to media to voice their opposition, and an independent judiciary is in place to help protect their right to do so.”

-  PEN South Africa

PEN International, along with PEN South Africa and PEN Afrikaans, made a submission covering the main issues at stake regarding freedom of expression and information.

The coalition focuses in particular on the deleterious consequences of criminal defamation on free speech and artistic expression. PEN welcomed the African National Congress’ Abolition of Criminal Defamation Bill, drafted in November 2015. Since the submission, however, there has been no progress on the bill. Meanwhile, a draft Prevention and Combating of Hate Crimes and Hate Speech Bill was published in October 2016 . The bill proposes restrictive measures on freedom of expression and freedom of the media and uses overly broad language. If passed, w, it could be used in place of the criminal defamation law to restrict freedom of expression.

In the last UPR, nine recommendations were made by Austria, Canada, Czech Republic, Germany, Poland, Portugal, Sweden and the United States with regards to freedom of expression related to the Protection of State Information Bill. These countries requested the need to ensure the Bill complies with both domestic and international law and the need to engage civil society, activists, NGOs and media to seek common ground on the Bill. It is widely expected that if the President does sign the Bill into law, many civil society actors would call for its immediate referral to the Constitutional Court.

Several apartheid-era laws and a 2004 Law on Antiterrorism remain on the books which restrict reporting on certain institutions seen as important to the national interest. Recent outbursts of protest by, especially, black female students in South African schools, have also highlighted some deep-seated biases entrenched in South Africa’s education system, carried over from the days of apartheid.

The coalition is also concerned by the 2015 Draft Cybercrimes and Cybersecurity Bill (B-2015).In the submission, the coalition noted that the Bill contains grievously unacceptable features and therefore should be withdrawn and redrafted afresh with inputs from civil society.

Several instances of harassment of journalists by state actors in the period under review was also cause for concern– including false arrests for coverage of police action. The South African National Editors Forum has strongly condemned the treatment of journalists in parliament.

In September 2016 the Supreme Court of Appeal ruled that the practice of the Parliamentary officials operating the Parliamentary Broadcast Service – which serves national news broadcasters – to censor videos showing disorder and commotion in the National Assembly during a sitting is unconstitutional and should cease. Over the previous two years when disorder broke out the Parliamentary video cameras were switched to the Speaker whose face occupied the screen until the commotion ended. The court also ruled that the jamming by security officials in February 2015 of mobile phone signals from people, including journalists, in the chamber was unconstitutional. The jamming prevented radio journalists from conducting live broadcasts from the Assembly and prevented them and others from communicating with their offices. Both practices have been stopped.

At this year’s State of the Nation address by President Jacob Zuma security officials and police restricted reporters and photographers to certain areas in the Assembly, so preventing them from moving freely in the building as was their custom and carrying out their duties. This was sharply criticised by the media. This conduct parallels the instruction given by the South African Broadcasting Corporation’s Chief Operating Officer Hlaudi Motsoeneng, who was improperly vested with the powers of the editor-in-chief, to order SABC reporters and photographers not to depict scenes of violence and destruction of public property which had occurred during political demonstrations against deficiencies and failures in government policy. This instruction was overturned by the Independent Communications Authority of South Africa.

At the international level, South Africa largely failed to utilise its membership at the United Nations Human Rights Council to support resolutions that would have helped the promotion and protection of human rights in various countries, most notably in North Korea, Syria, Sri Lanka, and Iran.

PEN South Africa, PEN Afrikaans and PEN International recommend that South Africa adopt the following measures:

• Ensure the Protection of State Information Bill meets the standards and requirements of both the South African Constitution and of the country’s commitments to international statutes and treaties before it is passed into law;
• Ensure the public broadcaster, the South African Broadcasting Corporation, meets its legal and moral obligations to provide access to information and to enable the freedom of expression of all;
• Provide adequate training to ensure that all law-enforcement agencies fully understand the legal protections afforded to members of the press, and their responsibilities in enforcing them;
• Amend the Cybercrimes and Cybersecurity Bill so that it achieves the protections sought in the safest way, taking into consideration the freedom of expression clauses in the Constitution and protection of the public interest;
• Schedule public hearings at the National Assembly during the passage of the Cybercrimes and Cybersecurity Bill at which civil society can put forward their views;
• Repeal criminal defamation and ‘insult’ laws, making defamation and insult a civil offence, and provide leadership on the African continent to help repeal similar laws in other countries;
• Amend the Film and Publication Board’s regulations and the Films and Publications Amendment Bill to ensure that regulation of the internet and online media do not unlawfully restrict freedom of expression and the free exchange of ideas;
• Drop proposals to introduce legislation providing for a statutory Media Appeals Tribunal and instead allow the Press Council to continue its voluntary ethical stewardship of the media;
• Amend the National Key Points Act and the Protection of Constitutional Democracy Against Terrorist and Related Activities Act to ensure that they are fully compatible with South Africa’s obligations under international law to protect freedom of expression;
• Promote the highest standards of human rights in its foreign policy, including at the UN Human Rights Council;
• Investigate allegations of restrictions in the education system against use of indigenous languages on school premises and codes of appearance including hairstyle and ensure that students are able to express themselves freely.

To view the submission click here.

For further information, please contact Sarah Clarke at PEN International, Koops Mill, 162-164 Abbey Street, London, SE1 2AN. Tel: +44 (0) 2074050338, Fax: +44(0) 2074050339. Email: