Annual Report -1998

The Freedom of Expression Institute was established in 1994 to protect and foster freedom of expression. The Institute was formed from the merger of three organisations active in the defence of free speech during the apartheid era: the Campaign for Open Media, the Anti-Censorship Action Group and the Media Defence Trust.

The right to freedom of expression straddles numerous spects of a democratic society in a manner quite unlike other fundamental rights we enjoy. It encompasses the rights to freedom of speech, media, academic inquiry and artistic endeavour. It extends to and can conceivably be regarded as essential to other fundamental rights such as freedom of choice, religion, conscience, association, protest and political freedom. It includes the right of access to information and the right to receive and impart information. In its entirety therefore, freedom of expression forms the backbone of all vital institutions and activitiesof civil society.

Despite a new democratic order based on a human rights culture, the founders of the Freedom of Expression Institute understood the importance of creating an organisation which interpreted freedom of expression in this way. When FXI was founded in 1994, it pledged itself to defending and expanding the right to freedom of expression and all its integral parts. Five years later, FXI is recognised nationally and internationally as one of only a handful of organisations in South Africa that actively campaign for the right to freedom of speech, expression and access to information.

Despite it entrenchment in our Constitution (albeit as a qualified right), the right to freedom of expression and its component parts will always be controversial. The controversy includes the issue of whether a fundamental human right such as freedom of expression can be abused and how. On the other end of the debate is the question of appropriate limitations on this fundamental right. The debate reflects a necessary tension that comes with the growing maturity of our democratic nation as people and institutions embrace the rights they have attained, and others are brought in step with the realities of our constitution. In this context, the continued need and importance of an organisation like FXI remains clear.

FXI undertakes a wide range of activities in support of its objectives, including monitoring, research, lobbying, educational activities, campaigns and publicity. Weekly freedom of expression reports and action alerts are circulated on the Internet and posted on our site and the FXI newsletter, Update, is published every two to three months. The Freedom of Expression Defence Fund, a component of FXI, funds litigation in defence of freedom of speech and expression.

CHAIRPERSON’S REPORT –
A MESSAGE FROM MANDLA SELEOANE
We have come to the end of yet another exciting year. FXI has experienced growth both in numbers and in stature. This has been possible largely because of the untiring manner in which the staff and the Executive have monitored events in the country and responded creatively to issues of public interest.

The involvement of members in the activities of FXI has also picked up gradually over the years. This year we have seen a much greater involvement of the members in, for instance, the sub-committees of the organisation and in seminars and workshops hosted by FXI. This must be encouraged. Having said all of that, however, we must never lose sight of the implications of growth. I have often argued that in the final analysis the defences of freedom of expression must be built in the hearts and minds of the people. This statement has a double-barrel implication.

It suggests, in the first place, that we have to attract as many people as possible both to our views and to the organisation. And it suggests, in the second place, that we must get as many people as we can, committed to the ideal of freedom of expression. It does not matter whether this second set of people finds itself inside or outside FXI. I remain firmly committed to that view. But I think we have, so far, concentrated only on drawing people to us and did little or nothing by way of enhancing people’s understanding of freedom of expression, whether they are in or outside of the organisation. We have done little or nothing about enhancing the understanding of people of what it means to have an organisation that is dedicated to freedom of expression.

Viewed from the standpoint of a people with a history like ours, this failure on our part can have disastrous consequences for the type of organisation that I think we are. We have struggled for many years in order to establish a social order where people are treated equally irrespective of any biological differences that may exist among them. It is easy and understandable, therefore, for a people like us, to privilege the value of equality over freedom of expression. I think we have seen some serious indications of this tendency within the organisation in the past year.

I believe that it is necessary to debate seriously how an organisation like ours should react to situations where freedom of expression contests the right of way with another constitutional core value. It is my hope that the incoming executive committee will apply its mind seriously to this question, since the future of FXI might well depend on how we approach it.

MEDIA FREEDOM

An ominous trend discerned by the Committee to Protect Journalists in their annual survey is the use of criminal defamation to criminalise the practice of journalism. At least 118 journalists were behind bars for their work in 25 countries and 24 journalists in 17 countries were assassinated during 1998 in reprisal for their work.

Although journalists face death and detention on a regular basis in other countries, this is not the case in South Africa where, since the 1994 election, a general respect for the media exists. However, this does not mean that conditions are ideal. In 1997-1998 reports, FXI noted that government criticism of the press had become fairly regular – black journalists were particularly affected as they were faced with accusations of being unpatriotic if they were critical of government. This has diminished substantially in the past year and FXI believes this a sign of a growing maturity in government/press relations. It was therefore disappointing to note in April 1999 an ANC report, emanating from an internal commission of inquiry into leadership problems in Mpumalanga which accused certain members of the press of conspiring with individuals within the ANC to promote specific party interests and sow divisions within the party.

Of particular concern were the statements that the ANC knew who these journalists were and that they would be spoken to. This is an intimidating tactic and one which could result in the truth being suppressed for fear of chastisement by the powers that be. FXI was also incensed at the arrest of the Swiss journalist Jean-Philip Ceppi for supposedly being in possession of a secret document. The nature of the arrest and detention were reminiscent of the manner in which the previous government behaved and we hope that such an incident will not be repeated. FXI came out strongly against his arrest and kept track of developments on his detention and subsequent release. FXI was therefore pleased to receive Ceppi as a visitor to our offices where our information officer was able to conduct a personal interview with him.

Inquiry into racism in the media

The South African Human Rights Commission’s announcement late last year of a probe into racism in the media caused a furore, with the press and the human rights community being sharply divided between those who saw the inquiry as a move to compromise the press, and those who thought that the inquiry was long overdue.

The inquiry is generally seen as the Commission’s reaction to a complaint submitted by black professional organisations who argued that there was a concerted effort by certain newspapers to perpetuate discrimination. The organisations, the Black Lawyers Association and the Association of Black Accountants of South Africa, asserted that the racially biased reporting of certain newspapers has the effect of diminishing the dignity, the culture and self-esteem of black individuals and communities.

Although this particular complaint was not taken up, the SAHRC responded by announcing its general inquiry into racism in the media. In instituting the inquiry, the Commission made reference to the indivisibility and interdependency of human rights and its reluctance to recognize a hierarchy of rights. Suggesting that it was necessary to contextualise human rights, Barney Pityana, SAHRC Chairperson, said at a press briefing that the Commission seeks to understand societal forces which cause different groups of South Africans to emphasise different rights.

Members of the FXI Executive, although united in their continued commitment to press freedom, had differing opinions on how to react to the inquiry and it became the subject of much debate. Accepting that the inquiry was a fait accompli, however, the Executive decided that FXI should engage the Commission. In line with the opinion expressed by FXI Chairperson Mandla Seleoane that such an inquiry should be strictly circumscribed and recognizing that racism is a freedom of expression issue, the Committee felt it was important that FXI strive to ensure that the inquiry did not compromise freedom of expression and, in particular, press freedom.

The terms of reference of the inquiry were made public earlier this year and FXI was disappointed to note their tone. Particularly worrying was the Commission’s powers of search, seizure, arrest and subpoena. Because of its concerns FXI commissioned a legal opinion on the constitutionality of the inquiry. The conclusion reached articulates the pitfalls of such an inquiry:

“The proposed inquiry and the report flowing from it, will not in themselves by law impose any new restrictions on freedom of expression. The process of the inquiry, may however have a significant impact on those accused of responsibility for racism in the media. The inquiry and report may also influence public opinion, government and ultimately parliament itself to enact legislation imposing restrictions on freedom of expression.”

Another legal opinion, commissioned by an FXI executive member, saw the inquiry as much morethan just a threat:
“The inarticulate premise behind the proposed inquiry into racism in the media is of the very essence of censorship. It would seek to regulate the content of the media, a matter which is vigorously protected by any meaningful constitutional guarantee of freedom of expression.”

A delegation consisting of the FXI executive director and three executive committee members then met with the Commission to articulate our concerns. We focused, inter alia, on the problems surrounding the Commission’s powers of subpoena, search, seizure and arrest. Apart from the possibility of the use of these powers turning the inquiry into a witch-hunt, FXI was also worried that journalists’ rights to protection of sources may be compromised.

Although it could obviously not anticipate the outcome of the inquiry, the delegation was keen to ensure the inquiry did not lead to legislation which imposes restrictions on freedom of expression and/or press freedom. We suggested that the Commission focus on looking at ways in which professionalism within the media and a human rights culture, which includes respect for freedom of expression, could be encouraged. FXI also took the opportunity to address the issue of the concentrated ownership and management of the media which tends to impact on content. The inquiry, we suggested, should explore this and the idea of an agency to ensure media diversity.

FXI also warned that any attempts to suppress certain reports which may reflect racism in our society, could see racism go under-ground and fester. FXI is committed to non-racism but believes that only when it is visible can one address it and monitor its eradication.

Some of FXI’s fears were allayed after meeting with the Commission but because of our concerns regarding its possible impact on freedom of expression, we will continue to monitor the inquiry.

Beyond our borders

Criticism of the South African media did not come from inside the country only. Finding an alternative to harassing the Zimbabwean independent press, the Zimbabwean President Robert Mugabe accused South African media of trying to bring down Zimbabwe through a hidden agenda. Mugabe went as far as accusing Johnnic chairperson Cyril Ramaphosa of disowning his African roots by failing to silence newspapers which criticised the detention and torture of two journalists. He said “The media in South Africa remained committed to independent press in Zimbabwe was to Rhodesia’s 1965 unilateral declaration of independence.”

The Southern Africa region has been largely affected by lack of press freedom with governments continuously harassing critical journalists. For instance, the media were attacked or harassed by the governments of Angola, Democratic Republic of Congo, Mozambique, Namibia, Zimbabwe, Zambia, and Swaziland, leading on occasions to arrests and detentions of journalists. It is also worth noting that Swaziland’s plans to introduce a press council, which FXI counselled against in 1998, were shelved in April 1999.

South Africa too it seems was a party to harassment of journalists in the region and in fact reports on the treatment meted out to journalists during the South African incursion into Lesotho were alarming. This led to FXI issuing a call to all parties involved in the conflict to ensure the safety of journalists reporting on the situation there. Some journalists said they believed they had been deliberately targeted and fired on by snipers. FXI expressed concern at the high casualty rate among journalists and the criminals acts committed against some of them.

Exposing Corruption

On a more positive note the press has continued its vigilance and exposure of maladministration and irregularities in the government sector. Through research and investigations, government has been forced to address a number of issues. The dogged pursuance of corrupt officials has seen a grudging acknowledgement from government of the importance of the press in exposing corruption. Exposure of corruption in the private sector, however, has been minimal. It is FXI’s belief that revelations of corruption and

Corruption has emerged as a major threat to development and all parties in the run up to the election saw this as an issue to be addressed. The South African Government also organised a National Anti-corruption Summit in April 1999. This conference was inter alia aimed at providing the basis for the International Anti-corruption Conference in October 1999.

It is therefore apposite to mention here FXI’s involvement in the campaign to combat corruption. Since October last year, FXI together with other stakeholders ranging from the public and private sectors to organs of civil society has been involved in the campaign. The campaign is part of Transparency International South Africa’s broader campaign to establish productive and firm anti-corruption fronts and coalitions with a clear vision and terms of reference. Amongst others these fronts and coalitions include the National Anti-corruption Initiative by government, the first Public Sector Anti-corruption Conference, to be held in Africa

In this context, FXI was invited to serve on the steering committee to organise the Ninth International Anti-corruption Conference to be held in South Africa on the 10 – 15 October 1999. Preparations for the conference are at an advanced stage and work is being done to invite participants from all over the world to the first International Anti-corruption Conference to be held in Africa.

Defamation

Significant to press freedom in South Africa was the ruling made by Judge F. Heffer on the “Bogoshi matter”. It represented a victory for freedom of expression principles and overturned previous Supreme Court and Appellate Division decisions which had severely restricted the media in its role as a public watchdog. In the past, when the media published allegedly defamatory material it had to prove that it was true in all respects and that publication was in the public interest. The new ruling means that a journalist need now only prove that s/he took sufficient steps to verify the information. Justice Heffer said “In South Africa, freedom of expression had not been given sufficient weight especially in regard to the role of the press when considered against the competing value of the reputation of the plaintiff”.

In the past, when the media published allegedly defamatory material it had to prove that it was true in all respects and that publication was in the public interest. The new ruling means that a j In this judgement, the court opened the door to a more general defence for journalists that the media has a duty to provide the public with information that is in the public interest, and by so doing, the media contributes to the formation of public opinion.

Protection of sources

Section 205 of the Criminal Procedure Act continues to be a thorn in the side of the media. The South African National Editor’s Forum, with the aid of FXI’s research, has over the past year met with government to discuss laws currently on the statute books which inhibit the flow of information. Section 205, under which journalists can be subpoenaed to reveal their sources, has been pivotal in the discussions. Section 205 weakens section 16 of the Constitution guaranteeing freedom of the press and other media. Despite the ongoing discussions, several media organisations in South Africa were once more served with subpoenas to hand in their videos and photographic material relating to the murder of gang leader Rashaad Staggie. The subpoenas were issued in terms of the Inquest Act which in turn relies on section 205 of the Criminal Procedure Act. Notwithstanding arguments from various media institutions regarding protection of sources, the magistrate ruled that the subpoenas issued were valid and the media would be forced to comply with them. Should they fail, he said, they could face heavy penalties.

Launching an astonishing attack on the media, Western Cape Deputy Attorney-General Willie Viljoen asked: “Are they cowards who can accept no responsibility and are unable to live up to the constitutional principles of transparency, or are they instruments of a third force that fuels conflict and then revels in sensationalism?”

It is encouraging to note, however, that the SANEF discussions with the government have resulted in an agreement which includes a number of steps to be taken before subpoenas are issued under section 205, while discussions continue around a possible amendment.

In October, FXI together with Article 19, the International Centre Against Censorship, published a booklet entitled Protection of Sources in South Africa. The booklet contains the contributions made at a seminar held by the organisations earlier in 1998. The publication has been distributed widely since its publication.

Media diversity

There has been some movement in ownership and control of the major media in South Africa in the past year but the changes have not resulted in significant differences to the traditional patterns. Only a limited number of newspapers exist or are geared to serve rural and marginalised communities while newspapers aimed mainly at the affluent urban market continue to grow. New appointments in editorial management, however, are gradually changing the tone of a terrain previously dominated by white voices. Although the introduction of Sunday World is to be welcomed, this is a “niche” designed paper aimed exclusively at the black market. There is still a gap in print media which address an integrated audience.

FXI contends that the best opportunity for success in the diversity of the media is for some controlled intervention by government and consequently in the second half on 1998 it embarked upon a campaign to explore and advance the establishment of a funded media development agency – a vehicle media organisations have been lobbying for since 1995. In an effort to ensure that some concrete action was taken in furthering the idea, FXI together with the National Community Media Forum, designed a campaign which included research, consultation (with government, the industry and regional groupings) and the development of an MDA model. The initial stage of researching thoroughly the current status quo in the print media, broadcasting (commercial, community and public broadcasting) and signal distribution and the extent to which the regulation of broadcasting acts as a structural constraint, was commissioned at the close of 1998. International research on precedents elsewhere was also sought. FXI is in the process of finalising the research and filling in the gaps. A major seminar in Gauteng and at least one seminar in each province are the next steps. At these seminars the research undertaken will be shared and a response sought.

In the interests of media diversity, FXI also made a submission on the Competitions Bill before it was passed and held a seminar on media ownership and competition in conjunction with the Graduate School of Public and Development Management in Johannesburg. Speakers at the seminar included representatives from FXI, the Print Media Association, Department of Trade and Industry, and labour research institute Naledi. The debate focused on the extent to which the Bill would be used to foster media diversity.

ACCESS TO INFORMATION

Government Comunication and Information System Last year saw the establishment of the Government Communication and Information System. The new body is in line with the recommendations made by the Task Group on Government Communications established by the then new government to make recommendations on future government communication. The GCIS mission is to ensure that dialogue between government and its citizens is enhanced. GCIS pledged to focus its work on six broad priorities:

  • establishing a coherent government communication system;
  • building a development information network to service grassroots needs;
  • developing an information strategy for multi-purpose communication centres;
  • encouraging media diversity; and
  • improving the competencies of government communicators.

Many steps to implement some of the above have already taken place. With the development of a comprehensive web site, the GCIS has provided the public with what is described as a mechanism by which information from government departments, provinces, and other government bodies is accessible through a “one-stop gate-way”.

The arrival of the CGIS, however, has not been without its problems. Opposition parties, recently accused the government of misusing the GCIS to boost the ruling party in its election campaign. Accusations came as a result of the R4,3 million publicity campaign to highlight government achievements. In this context the GCIS will have to be monitored as FXI would not like to see the new body take on the same role as the previous South African Government Communication Service which was seen as a propaganda arm of the ruling party.

The Open Democracy Bill

The Open Democracy Bill, now five years old, provides for the right of access to records of governmental bodies. Despite its long passage, it was only introduced in Parliament in May 1998. The Bill embodies the spirit of the Section 32 of the Constitution which provides for the fundamental right of access to information.

One of the major deficiencies of Bill is that it fails to address the issue of access to information held by the private sector. Section 32 (1) (b) of the 1996 Constitution provides for this horizontality providing that: (Every person has the right of access to) information that is held by another person and that is required for the exercise or protection of any rights. Consequently FXI saw this as a major priority and funds were raised to research specifically on access to information held by the private sector, a civil society consultative process, and what was hoped would be FXI’s final submission.

In fulfilling this strategy, FXI held a meeting with civil society groupings in Gauteng in June 1998. Organisations present were provided with updated information and documentation. FXI also used this opportunity to consult and inform organisations on the planned July seminar, particularly as the timing at this point seemed crucial.

FXI research provided the organisations with the necessary background to argument for the inclusion of a chapter on access to information held by private bodies. The final paper included sections on: the case for inclusion; crossing the public-private divide; a close examination of section 32 (2) and the imperative in the clause for legislation; the test for section 32 (1) (b); information and antecedent rights; grounds for refusal; different models (definition, generic, detail model, synthesis); objections. The research also contained a limited review of existing legislation which incorporated rights of access to information held by private bodies.

A seminar, which examined this and other research and strategies, therefore informed our August 1998 submission. Although public hearings were supposedly on the cards for sometime in that particular parliamentary session, they did not take place until 1999.

Chairperson of the Justice and Security portfolio committee, Johnny de Lange, however, did announce in late December that the debate on the Bill was being re-opened and submissions once again being sought. Of particular interest to FXI was his comment that, “While the Bill is generally about open government, the extent to which private sector information should be made available is also part of the debate.”

The re-opening of the debate and the commitment to the passing of the Bill was welcomed but particularly pleasing was the extension of the debate to privately held information. De Lange’s statement though on another level was cause for concern for it suggested that the media’s abilities to investigate and report effectively could be affected: “The question was to what extent information held by the media should be privileged, particularly if an individual was seeking to protect his or her own interests.”

FXI immediately took up the challenge and made sure that a submission advancing the argument that as companies and institutions media bodies do not deserve any special treatment but the information gathered and the sources used in gathering that information, do.

Unfortunately the long-awaited public hearings were held over two days in March in the same week as Parliament was dispersing. This meant that there was not really sufficient time to delve thoroughly into the many problem areas of the Bill which is an extremely complex piece of legislation. Although we believe that the Bill cannot be postponed indefinitely, the delay has given the drafters more time to address the problems and recommendations which emerged at the hearings.

FXI’s presentation covered a number of major points of a more general nature, our research on mechanisms of incorporation of s 32 (1) (b) of the Constitution, and the ODB and the media. The committee was particularly interested in the models for the incorporation of access to information held by the private sector.

A number of demands and comments were reiterated throughout the hearings: the “right to know” should be the raison d’tre for the Act; the ODB should be accessible and in simple language – a deficiency in the current draft; it must serve ordinary people and not only the rich; for unsuccessful applicants for information, there should be a less formal, speedy and more accessible step before having to resort to the High Court, hence the idea of a Tribunal in the extraneous review process; the “harms test” should be re-introduced; private institutions should not be exempt.

Given the fact that the Bill has not been passed and the new parliament once it has been sworn in which will have to decide whether or not to take the Bill forward, questions do arise as to why the hearings were held at the last moment. Some may say it was a sop to its advocates. FXI would prefer to believe that it was a genuine effort to keep the Bill alive and to meet the deadline imposed on it by the Constitution.

Greater transparency

In other new legislation obligations to openness and transparency have been evident. The National Environmental Management Act, for example, provides access to government held information about the environment and risks to the environment while providing government with the power to obtain information on the environment. Although some environmentalists have argued that the Act does not go far enough in ensuring transparency and public participation, it is a step in the right direction. In fact the Legal Resources Centre argued at the public hearings on the Open Democracy Bill, that if the ODB is passed in its current form it could end up negating some of the positive changes brought about by the National Environmental Management Act.

We are also seeing the introduction of legislation to enforce tough new disclosure provisions in the corporate world. An amendment to the Companies Act will compel companies to disclose the identities of all share holdings of 5% or more in a company. Companies will also be obliged to make full disclosure of the earnings of its directors for inspection by stakeholders. The Congress of South African Trade Unions has also demanded that the country’s top 50 companies publish their salaries and fringe benefits of their senior managers and chief executives and the Employment Equity Act passed last year compels companies to disclose details of salaries and benefits for all employees. Information on remuneration packages are being included in the employment equity report that companies will have to submit every year to the labour department in terms of the Act.

Since its inception, the Truth and Reconciliation Commission has played an exemplary role in information disclosure. The need for perpetrators to make full disclosure before amnesty can be granted has resulted in many of the pieces in the apartheid puzzle falling into place. The TRC’s decision to open the hearing into the previous government’s biological warfare programme was commendable and it is as a result of that hearing that much information on the programme done in the name of South Africans was finally revealed. Information revealed in the hearing also led to the Department of Foreign Affairs and the South African Defence Force seeking a settlement with FXI in relation to the release of Wouter Basson’s bail hearing – dealt with later in this report. The fight to have this released took some two years but FXI believes it was important to pursue it.

Last year FXI called on the TRC to ensure that all records, including submissions, oral testimonies, investigation dockets and amnesty applications, many of which remain confidential, should be preserved and disclosed in their entirety once the commission has issued its final report. It was therefore surprised to learn of the arrest of Swiss journalist, Jean-Philippe Ceppi in connection with being in a possession of a “top secret document” which had been given to him by the TRC.

FXI believes that legislation such as the Protection of Information Act, under which Ceppi was arrested, is one piece of legislation that must be reviewed because it, like several other pieces of legislation which inhibit freedom of expression, is a relic of the apartheid era. Although there may well be some current defence documents deserving of protection, FXI believes that any information relating to the previous government should not be protected.

The Open Democracy Bill is intended to replace the Protection of Information Act so that blanket restrictions on disclosures may be more carefully and narrowly constructed to give substance to the access to information clause in the Constitution and the principles of openness and accountability.

The free flow of information was also enhanced by the Poverty Hearings organised by the South African Human Rights Commission and the South African National NGO Coalition. FXI believes that the hearings revealed important information relating to South Africa’s poor and marginalised. These categories of people tend to be neglected by the mainstream media and the hearings focused attention on these communities and their daily struggle for survival.

Also central to the issue of access to information is universal access to telecommunications as one of the key instruments for dissemination of information. Universal access and universal services must be recognised as important aspects of freedom of expression as the constitution outlines that freedom of expression is not only a right to express one’s views but also to receive and impart information. It was from this perspective that FXI prepared a response to the government paper on Universal Access and Universal Service in South Africa.

Broadcasting

The broadcasting sector in South Africa underwent a tremendous expansion last year. Despite initial concerns that e.tv was not abiding by its licencing conditions as it phased in its service, it is proving to be the first real competition to the public broadcaster. What with e.tv and the dozens of commercial and community radio stations now on air, South Africans today have a large broadcasting choice and consequently access to a variety of voices and opinions – something that was completely lacking pre-1994.

With the broadcasting policy process coming to a head last year and new broadcasting legislation being introduced, FXI was constantly involved in monitoring the process and exposing its flaws particularly when it believed the freedom of the airwaves was being affected.

FXI’s concerns expressed in the last annual report regarding the consultation process were encapsulated in our response to the White Paper. Furthermore, FXI consulted with various civil society groupings and experts, publicised various problems with the draft legislation, and met with the Department of Communications and the Independent Broadcasting Authority during the year.

A substantial submission was then forwarded to the Parliamentary Portfolio-committee on Communications on the new Broadcasting Bill. As a consequence of this submission, FXI appeared before the committee to argue its points. After their appearance, FXI was asked to provide suggestions on how the wording of the new act could be altered to accommodate our concerns.

FXI’s concerns continue to be: the future independence of the IBA when it merges with the SA Telecommunications Regulatory Authority this year; the independence of the public broadcaster in relation to its proposed corporatisation; and the powers of the Minister which, if not clearly defined, could diminish the independence of the IBA. So concerned were some political parties with the possible usurpation of the IBA’s powers that they argued the Bill was unconstitutional. This led to the President sending the Bill back to Parliament for further amendments. FXI will be monitoring the implementation of the legislation which has now being passed by Parliament. In relation to the proposed corporatisation of SABC, FXI has been seeking some reassurance that should the public broadcaster become more profit-oriented it would not compromise its eleven language policy. This led FXI to substantial correspondence with the Pan South African Language Board who in turn communicated with SABC and the Department of Communications. FXI was also asked to comment on the Department’s response.

Community radio, commercial radio, free-to-air television and pay-to-view television, along with the public broadcaster, are obliged to broadcast and promote the interests of the public and its development. Central to the debate is the question of content in broadcasting.

Friends of the Public Broadcaster

Local content in public broadcasting and other issues pertinent to the public broadcaster has led to the formation of a grouping calling itself Friends of the Public Broadcaster. Friends – an initiative inspired by similar organisations in other countries – is a network of concerned organisations attempting to mobilise the opinions and aspirations of users of the public broadcaster. It has been assisted by FXI in its birthing period. An inauguration meeting led to several working groups being established including: local content programming; women in media; sports, games, arts and social transformation; broad policy making and transformation.

Friends has also campaigned against the erosion of newsroom independence and critical journalism which it believes has led to, among other things, the dismissal of some of the Corporation’s top journalists. What with numerous contractual employees – often those who have fallen from favour for not towing the line of management – getting the boot with no warning, labour practices at the SABC have also come under fire. The impact of the threat of dismissal can have a profound effect on the independence of the SABC and can result in self-censorship by those in fear of losing employment.

Towards the end of 1998 the IBA signalled intentions to amend its code of conduct as well as to establish a suitable definition of advertising and the regulation of infomercials and programme sponsorships. FXI compiled a submission on these matters and also gave oral evidence on them.

IBA Code of Conduct revised

The revised code of conduct for was announced by the IBA in April 1999. According to the IBA, the revision aims to bring the Code in line with the Constitution, particularly in relation to the freedom of expression provisions of the Bill of Rights. FXI certainly welcomed this and the fact that some of our recommendations were included.

However, some of the provisions are worrying in that they give the IBA powers to control content particularly in relation to what it terms “gratuitous violence”. FXI will monitor the future implementation of the code which, because it is part of the Independent Broadcasting Authority Act, is still to be passed by Parliament. FXI also submitted comments on guidelines for broadcasting during the elections.

FREEDOM OF SPEECH, ASSOCIATION AND ASSEMBLY

Demonstrations
Although there were fewer incidents of violence during protests and strikes over the past year, as compared to other years, the general approach to demonstrations is still a concern. There have been several incidents of violence during demonstrations led by People Against Gangsterism and Drugs – some provoked by the demonstrators themselves and others by the police. The confrontation between demonstrators and the police during a protest against the visit of British Prime Minister Tony Blair to South Africa, was particularly violent. The police’s argument was that the protesters did not apply for permission and therefore the demonstration was illegal.

FXI has always recognised that it is essential to regulate protest where a large number of people is expected, but questions the Regulation of Gatherings Act’s commitment to the right of free assembly and protest. The Act, passed by the previous government in its last days, gives the authorities too much power in regulating demonstrations. We contend the legislation of this nature should work from the premise that it is the authorities’ duty to facilitate the proceedings and offer security to those involved as they exercise their constitutional rights. Demonstrations should involve responsibility from both the demonstrators and the police.

Those who engage in violent demonstrations should be brought to book if they carry guns or behave in a criminal manner. In a demonstration during an Eskom strike last year protesters went on a rampage, destroying cars and part of a building. Those who were involved were recently taken to court. Although the prosecution of individuals involved in criminal acts during demonstrations may be a double-edged sword, it does serve to make demonstrators accountable for their actions.

Anti-tobacco legislation
Freedom of commercial speech is not one of the areas that FXI feels compelled to be involved in: firstly, because there are powerful industrial forces who are able to take up causes relating to the marketing of their products, and, secondly, because FXI members have differing opinions on to what extent commercial speech should be regulated. The Tobacco Products Control Amendment Bill, however, has such far-reaching consequences for freedom of commercial speech that FXI felt it could not be ignored. Because it was motivated by commercial imperatives, however, we did not align ourselves with the industries’ campaign to stop the passing of the legislation but rather chose to place our anxieties regarding this piece of legislation in a submission to Parliament.

The submission argues: for protection of speech but particularly for that which is known as commercial speech and artistic expression; agrees that there is a need to balance rights ; suggests that parts of the Bill will not pass the limitations test in section 36 of the Constitution; expresses concerns regarding the banning of advertising of a lawful product; the suppression of solicitation of commercial transactions; that it will create an unfair advantage for importers; the responsibility for banning a product falls on the media instead of government; suggests self-regulation and educational campaigns specifically in schools and conducted by the medical profession may be a way of preventing minors from smoking.

CENSORSHIP

The Films and Publications Act in operation
The establishment of the Films and Publications Board saw the 1996 Films and Publications Act come into operation in 1998. The Board’s commitment to regulate rather than censor was tested on at least two occasions in the year and, despite pressure, the Board stuck strongly to the positions it had taken. FXI went public in and secondly the Board in both these instances. One was in connection with an exhibition of drawings by a fine artist and lecturer Mark Hipper which certain organisations labelled “child pornography”.

The Board, after visiting the exhibition, declared it bona fide art. This decision was taken on review and the Review Board confirmed the Board’s original ruling. FXI kept in touch with the University of Rhodes and the artist throughout this trying time and attended the appeal.

The second occasion the Board faced criticism was on the release of The Last Temptation of Christ Although this film was only released on video, FXI backed the Board’s decision to release it. FXI has never been entirely happy with the Films and Publications Act but it has had to accept its passing and the establishment of the Board. FXI was therefore distressed to note that a problematic amendment to the Films and Publications Act was rushed through Parliament before it closed in preparation for the election this year. The amendment was introduced in the same week it was passed and was not distributed for comment to outside institutions. FXI believes that the amendment will have serious repercussions for the independence of the Board as it gives considerable powers to the Minister. It also introduces pre-censorship in some cases.

A student is censored

Last year, there were several occasions where free speech was curtailed. Among others, there was an incident in which a student, Layla Cassim, was suspended from college as a result of what she wrote in an essay expressing her views on the Palestine/Israeli issue. The Constitution clarifies the rights to freedom of expression and opinion perfectly in clauses 15 and 16 of the Bill of Rights. Therefore, citizens should be able to exercise those rights without fear of intimidation. FXI noted that the school failed to consider the implications of their actions regarding tolerance and diversity of thoughts in our country.

Education

Although our other activities have meant that public education on freedom of expression issues was to a degree put on the backburner over the past year, we still managed to: conduct a workshop in the Eastern Cape on the Open Democracy Bill; facilitate and conduct workshops at the South African Students Press Union’s annual conference on the development of an editorial charter; address numerous gatherings on issues relating to inter alia press freedom, hate speech and incitement to violence, the archives, broadcasting, and access to information.

FXI also contributed to the National Action Plan for the Protection and Promotion of Human Rights. NAP was lodged with the United Nations on 10 December 1998, International Human Rights Day and the 50th Anniversary of the Universal Declaration of Human Rights. In doing this the government responded positively to the recommendation of the Vienna Declaration and Programme of Action adopted at the World Conference in Vienna, Austria, 1993. NAP is a detailed policy and legislative programme to realise the fundamental rights and freedoms provided for in our Constitution and Bill of Rights. The section on freedom of expression is fairly detailed and FXI was pleased to note the inclusion of the majority of its recommendations.

A poster commemorating the 50th Anniversary of the UDHR was produced by FXI and distributed on the day. The NAP organisers, in conjunction with the South African Human Rights Commission, organised and co-ordinated activities including a parade of floats through the streets of Johannesburg. The parade ended at the Old Fort – a venue many ex-political prisoners will remember – where a carnival-like atmosphere prevailed with government departments and non-governmental organisations occupying stalls at which they promoted their institutions and human rights.

International and regional activities

IFEX

The International Freedom of Expression Exchange had its annual general meeting in Cape Town in April. Because the AGM was held in South Africa, three FXI staff members were able to attend. The meeting was hosted by the Media Institute of Southern Africa. Delegates discussed freedom of expression in times of war and crisis, and current press freedom violations in inter alia Zimbabwe, Zambia and Swaziland.

Workshops were held to promote free speech in Southeast Asia and Nigeria and to strategise on how to develop stronger links with groups in the Middle East and North Africa. Two ad-hoc committees were formed. One, is to investigate urgent cases of journalists in danger. Areas of concern would include the Balkans and Sierra Leone. The second committee is to monitor media diversity and ownership which poses a threat to press freedom worldwide. Jane Duncan of FXI led the discussion on the controversial area of media diversity and ownership and is also part of the committee dealing with the issue.

Joint appeals were also made for freedom of expression in the following countries: Democratic Republic of Congo, Lesotho, Balkans, Argentina, Tanzania, Zambia and Zimbabwe. MISA also organised a parallel workshop where information officers shared their experiences on advocating, lobbying and campaigning effectively on the Internet.

FXI’s relationship with IFEX has been strengthened in the past year as plans for FXI to take over the hosting of the IFEX website have taken place. At this stage all the necessary arrangements to do this have been made and we will soon assume responsibility for the regular servicing of the site.

The Southern African Human Rights NGO Network and other work
Regionally, FXI continued to be pivotal in the South African Chapter of the Southern Africa Human Rights NGO Network and, apart from local chapter meetings, attended the Annual General Meeting in Maputo. The meeting drew attention to the dismal record of the Southern African Development Community countries on freedom of expression issues and once again made freedom of expression a focus for the coming year by resolving that all national chapters should lobby for constitutional provisions that establish and guarantee freedom of expression. It was further resolve that SAHRINGON will campaign around the theme “Action for peace, justice and development in the region”.

FXI will be hosting the SAHRINGON Chapter co-ordinator, i.e. the organisation’s secretariat will provide the funding and a contribution to costs while FXI will provide the space to accommodate her for the upcoming year. The co-ordinator will be able to devote all her time to chapter activities and liaison with the secretariat and other country chapters. The South African Nigerian Democracy Support Group continued to function and was obviously profoundly affected by the death of General Abacha and subsequent moves towards democracy.

Publications and media exposure

Our newsletter, Update, was published five times over the past year. Some of the controversial issues surrounding freedom of the press both in South Africa and outside our borders were covered by the newsletter. News releases on these issues prompted considerable coverage and countless radio interviews. Radio stations all over the country have regularly sought FXI’s opinion. The Executive Director and a number of Executive Committee members appeared on both news and magazine programmes on e.tv, M-net and SABC. The international press were particularly interested in the detention of Swiss journalist Ceppi and numerous interviews were given on the matter.

Regular weekly reports with freedom of expression news culled from our press cuttings continue to go out both locally and internationally. Together with Article 19 and the Media Institute of South Africa, FXI continues to publish the Southern African Media Law Briefing. The newsletter continues to maintain a high standard of reporting on media law generally and precedent-setting cases. A highly successful correspondents’ conference at which the majority of the SADC countries were represented was convened by the three organisations and a similar conference is planned for later this year.

Freedom of Expression Defence Fund

Much of the work undertaken by the Freedom of Expression Defence Fund in 1998 was the continuation of cases embarked upon in 1997 and even as early as 1996. The Fund did, however, take on several new cases relating to parliamentary privilege, freedom of expression on campus, and whistle-blowing. The Open Democracy Bill provides protection for whistle-blowers but it is still not clear what assistance whistle-blowers will be able to rely on even when this Bill becomes law. The FXDF therefore decided that it was necessary to take on cases of this nature in the hope of establishing precedents for future whistle-blowers.

In the parliamentary privilege matter, MP Patricia de Lille was accused of making unparliamentary remarks. Although she withdrew the remarks at the direction of the speaker, Parliament went further and set up an ad hoc committee to look into the matter. The manner in which the committee conducted its inquiry was procedurally unacceptable yet is recommendations were adopted by Parliament. As a result of the adopted resolution, Ms de Lille was required to apologise in writing and be suspended from Parliament for 15 days. Ms de Lille, however, challenged the appointment of the committee, its procedure and the legality of the resolution. The challenge was successful and the curbs imposed on Ms de Lille were declared unconstitutional. An appeal on the matter is still to be heard.

In a matter involving access to courts martial, the FXDF (FXI and the Mail and Guardian being the clients) was also successful when the High Court declared sections of the Military Discipline Code unconstitutional. Before the judgement could be confirmed in the Constitutional Court, it became evident that the Military Discipline Code had been amended to remove the offensive sections of the code thereby making the matter moot. Believing that the amendment was as a result of the application, FXI was not adverse to a settlement which included FXI receiving the costs incurred up until the High Court sitting.

FXI, once again with the help of the FXDF, also gained a significant legal victory when the full transcript of the bail record of Dr Wouter Basson (who is facing a string of criminal charges) was released to the public without excisions. The Attorney General’s office, the Ministry of Foreign Affairs, the South African National Defence Force and the Council for Non-Proliferation of Weapons of Mass Destruction, conceded that there was no longer any justification for censorship of any part of the bail record and settled the case. They also agreed to pay the legal costs incurred in the two year battle and the settlement agreement was made an order of court.

Basson was signalled out in the Truth and Reconciliation Commission’s report as the key to South Africa’s covert bio-chemical warfare program during the apartheid era. The State respondents had been opposing public release of the bail record since February 1997 on various grounds relating to state secrecy, non-proliferation and the administration of justice. FXI continued to challenge the arguments of the State after winning partial release of the bail record in 1997 in a court application instituted together with the Independent and Times Media newspaper groups.

The victory vindicates FXI’s position of principle that denial of access by the public to official or legal proceedings must always be justified by the State in accordance with the rights to free speech and access to information contained in the South African Constitution.

Another success was the acknowledgement from the Mpumalanga newspaper Die Laevelder that it had defamed African Eye News Service journalist Justin Arenstein in its suggestion that Arenstein had paid government officials for information and that he was unfit to teach journalism. In the settlement reached the newspaper agreed to inter alia publish an unconditional apology on the leader page of Die Laevelder, pay legal costs to the tune of R30 000, and make a private apology to the college as well as a commitment not to discriminate against students taught by Arenstein.

FXI also got involved in the matter relating to Max Hamata, a journalist student who was expelled from Peninsula Technikon allegedly for bringing the institution into disrepute. The accusations from the Technikon were as a result of an article written by Hamata and published by the Mail and Guardian. The story related to students who funded their lifestyles by selling their sexual favours on campus. FXI contended that the Technikon should not have reacted by expelling the messenger. At this stage the matter has still not been resolved. FXI’s also expressed a concern that the actions of the Technikon authorities could also have a censoring effect on other journalism students.

MANAGEMENT AND ADMINISTRATION

FXI has four full-time and three part-time staff members. Five sub-committees ensure that staff and members are in regular contact and that the staff derive their mandate from and act in accordance with decisions made in consultation with FXI members. These committees are management, publications and training, media, foreign affairs and the Freedom of Expression Defence Fund. The annual strategic planning workshop was held in November last year. The meeting undertook assessment and planning for FXI, examined the project priorities for the forthcoming year as well as possible budget allocations. A number of policy issues were also debated including the organisation’s approach to the media inquiry and freedom of commercial speech.

FXI’s small staff component undertakes most of its activities in conjunction with voluntary members – the latter participating as much as they are able given that they have other demands on their time. Because of the strain of having to be multi-skilled in order the accomplish the work involved, training is essential. During the year staff benefitted by a number of courses including: a course run by the European Union Foundation for Human Rights on international human rights instruments, and others on self-development, time management, use of the Internet, and media presentation. Staff members also attended numerous conferences and seminars.

This year also FXI undertake a major re-organisation of its filing and resources. The new system, designed by a part-time librarian, is almost complete and includes an accessible catalogue. This will be an invaluable tool for FXI research as well as the many outside researchers who approach FXI for assistance.The past year also saw the Chairperson and an executive committee member represent the organisation at international conferences in the United Kingdom.

Executive Committee

The Executive Committee, elected by the FXI’s members at its Annual General Meeting in June last year, met once a month to discuss practical and policy matters relating to FXI and to assist in the smooth running of the organisation. Chairperson Mandla Seleoane and Deputy Chairperson Robert Nkuna were elected to their positions by the committee at its first meeting.

Mandla Seleoane has been a member of the Executive Committee of FXI since its inception and is currently the Chief Researcher: Democracy and Governance at the Human Sciences Research Council, where he has worked since 1995. He is also a past joint winner of the Don Caldwell Unconventional Hero Award for his ability “to break with conventional wisdom or to contradict popular dogma in order to protect the right to freedom of expression”. During the past year he was requested by the Minister of Safety and Security to serve on a commission of inquiry into racism in the South African Police Services.

Robert Nkuna is a past-President of the South African Students Press Union, past Vice-President of the Broadcast Educators and Trainers’ Association, and a member of the National Community Media Forum. He serves on the Board of Community radio TNG and is currently Assistant Director Media and Communications Policy at the Government Communication and Information System.

Raymond Louw has a long and distinguished record as a champion of free expression. The former editor of the Rand Daily Mail, he is a founding member of FXI, and was its Chairperson from 1995 to 1997. He also served as a member of COMTASK, the Task Group on Government Communications.

Clive Emdon has been a member of FXI since its inception, is a lecturer in journalism and is currently the Executive Director of the Independent Media Diversity Trust.

Japan Mthembu is a past-President of the Performing Arts Workers Equity and is currently PAWE’s General Secretary and Chief Negotiator. He has been a member of the Executive Committee since FXI’s formation.

Mafika Sihlali is an attorney practising in law the fields of media, broadcasting and labour law. He is also a past editor of the campus newspaper and mouthpiece of the then Black Student Society at the University of Witwatersrand.

Kate Skinner worked for the South African Democratic Teachers’ Union as National Media Officer and Head of Media Department and at the University College as a Communications lecturer. She is currently the Information and Liaison Manager for Mvula Trust.

Jabu Sindane was previously a senior research specialist at the Human Sciences Research Council and a think tank member of the Commission of Provincial Affairs and a Task Group on International Migration. He is currently Project Co-ordinator of the National Business Initiative-Local Government.

Blessing Manale is a former General-Secretary of the South African Students Congress, Information and Publicity Officer for the ANC Youth League and is currently the Transformation Officer at the University of the Western Cape.

FREEDOM OF EXPRESSION DEFENCE FUND

The Defence Fund invites lawyers, organisations, newspapers and other affected individuals in need of legal financial assistance to contact the Fund. The applications are considered by a committee appointed by the FXI Executive, which includes several media lawyers. They meet once a month to deal with new applications for funding and to assess cases which have already received funding.

MEMBERS

Claire Wright is a media lawyer specialising in broadcast and copyright law.

Advocate Bokaba is a representative of the Black Lawyers Association.

Tracy Cohen previously headed the Media Project at the Centre for Applied Legal Studies, has worked for the SA Telecommunications Authority and is currently a senior lecturer at the Link Centre of the Graduate School of Public and Development Management.

Harry Dugmore co-founded Rapid Phase, creators of the infamous Madam & Eve cartoon.

Odette Geldenhuys previously a Deputy Director of the Legal Resources Centre, is currently the National Programme Officer for the United Nations Human Rights Institutional Strengthening Project.

Moira Mokuena lectured for three and a half years in media law and is currently acting as an attorney.

Dali Mpofu is a human rights lawyer and advocate, representing the National Association of Democratic Lawyers.

Mafika Sihlali is an executive committee member of FXI but serves on the FXDF in his capacity as a media and human rights lawyer.

FXI MEMBERS AND STAFF

Mandla Seleoane, Robert Nkuna, Raymond Low and Laura Pollecutt.

FXI STAFF

The last year saw a number of staff changes including the appointment of a new a co-ordinator for the Freedom of Expression Defence Fund and a new office manager.

Executive Director

Laura Pollecutt has extensive experience in media and human rights advocacy. In 1997 she worked at the TRC where she co-ordinated the Special Hearing on the Media. Prior to this she held the position of Media Director at Lawyers for Human Rights.

Project Director

Jane Duncan has been with FXI since its inception, and was the co-ordinator of one of its founding organisations, the Anti-Censorship Action Group. Although she previously coped with the education and publications portfolio, Ms Duncan has over the past year made major contributions to most of FXI’s projects particularly when in-depth research has been needed.

Information and External Campaigns Officer

Nanagolo Leopeng has worked at the Bophuthatswana Television Broadcasting Corporation and is an honours graduate in communication. She has been with the organisation for more than a year.

Defence Fund Co-ordinator

Harry Letsebe was appointed the Defence Fund Co-ordinator towards the end of 1998. He is currently completing a law degree and has served on the executive of the South African Students Press Union.

Office Manager

Penny Hoar replaced Tracy Klass who sadly left us to move to Cape Town at the end of 1998. Ms Hoar is a qualified attorney who has made it her business to gain experience in administration and management. She is currently completing her masters degree.

Administrative Assistant

Mamashoabathe Noko was an administrator for Upbeat Magazine before completing an internship programme at the Civic Theatre specialising in public relations.

Accountant

June Hunter is an accountant with a extensive experience in working for NGOs.

Librarian

Sadly Winnie Nyabeni who had been an employee of one of FXI’s founding organisations took retirement in 1998. Gertrude Tsoku has taken her place.

FUNDING

The FXI acknowledges with gratitude its funders over the past year: The Open Society Foundation of SA, the Open Society Southern Africa Initiative, the European Union Foundation for Human Rights, the Swedish International Develop-ment Agency (SIDA), the Netherlands Institute for Southern Africa, the Royal Danish Embassy (Danida), Standard Bank, the Liberty Life Foundation, Interfund/Ibis, the Anglo American and De Beer’s Chairman’s Fund, Friedrich-Ebert-Stiftung, the Westminster Foundation for Democracy.

REPORT OF THE INDEPENDENT AUDITORS

To the members

FREEDOM OF EXPRESSION INSTITUTE

We have audited the annual financial statements of the Freedom of Expression Institute set out on pages 2 to 6 for the year ended 31 December 1998. These financial statements are the responsibility of the executive committee, while our responsibility is to express an opinion on these financial statements based on our audit.

Scope

We conducted our audit in accordance with statements of South African Auditing Standards which require that we plan and perform the audit to obtain reasonable assurance that the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.

Audit report

In our opinion, the financial statements fairly present, in all material respects, the financial position of the institute at 31 December 1998 and the results of its operations and cash flows for the year then ended in accordance with generally accepted accounting practice.

Douglas & Velcich
Chartered Accountants (SA)
Registered Accountants and Auditors

Johannesburg
4 June 1999

 

BALANCE SHEET
AT 31 DECEMBER 1998
 

1998 1997
FUNDS EMPLOYED NOTES R R
ACCUMULATED SURPLUS 607,612 417,867
EMPLOYMENT OF FUNDS
PLANT AND EQUIPMENT 2 95,181 116,520
NET CURRENT ASSETS 512,431 301,347
CURRENT ASSETS 984,705 549,108
Accrued grant income 4 5,000
Accounts receive 40,626 75,668
Cash at bank and on hand 903,079 473,440
CURRENT LIABILITIES (436,274) (247,761)
Accounts payable (102,929) (104,240)
Deferred grant income 3 (320,060) (130,472)
Danida – interest refundable (9,735) (9,681)
SIDA – interest refundable (3,550) (3,368)
607,612 417,867

 

INCOME STATEMEMNT
FOR THE YEAR ENDED 31 DECEMBER 1998
 

1998 1997
Notes R R
INCOME 1,616,064 1,432,822
Grants and donations 4 1,413,459 1,287,348
Interest 50,659 7,536
Conference fees 26,993 17,082
VAT refunds 5 26,993 17,082
EXPENDITURE 1,426,319 1,651,203
Audit fee 15,471 9,982
– current year 12,500 8,500
– prior year underprovision 2,971 1,482
Bank charges 655 277
Consultants’ fee – VAT refund 18,487
Computer rental and expenses 3,245 3,064
Depreciation 2 48,943 43,197
General expenses 2,155 670
Hire of equipment 946
Insurance 2,732 2,678
Litigation 143,126 213,155
Meetings and conferences 87,618 105,975
Postage and courier 8,486 10,866
Publication costs 125,363 120,665
Radio production costs 32,000 48,000
Refreshments 10,894 3,773
Rent, water and electricity 67,017 59,575
Repairs and maintenance 2,649 3,198
Research 685,911 665,238
Salaries and contributions 30,533 37,942
Staff recruitment and training 30,533 37,942
Stationery, photocopying and fax 26,828 27,090
Subscriptions 10,522 5,559
Telephone 42,073 68,218
Travel 50,659 73,877

 

SURPLUS / (DEFICIT) FOR THE YEAR 189,745 218,381
BALANCE AT BEGINNING OF YEAR 417,867 636,248
BALANCE AT THE END OF YEAR 607,612 417,867

 

Annual Report – 1997

1. THE IMPORTANCE OF THE RIGHT TO FREEDOM OF EXPRESSION AND ACCESS TO INFORMATION

The FXI believes that the collapse of  a closed apartheid society will not automatically lead to the emergence of a new open society in South Africa. The need for the FXI is rooted in the belief that South Africa is in the early stages of building a democracy and strong institutions are required to campaign for and uphold democratic values, and in this instance, the values of freedom of speech and expression and access to information. With this in mind the FXI was established in 1994 after its founding bodies had been active in the field for up to ten years. It is the only NGO in South Africa with the primary aim of defending and strengthening the rights to freedom of speech, expression and access to information.

2. MANAGEMENT AND ADMINISTRATION

2.1 THE EXECUTIVE COMMITTEE OF THE FXI
The 1996 Annual General Meeting at which the 1996/7 FXI Executive Committee was elected, was held on 23 May 1996. The following members were elected to the Executive Committee: Raymond Louw, Mandla Seleoane, Tyrone August, Ruth Bhengu, Harry Dugmore, Clive Emdon, JP Louw, Nomavenda Mathiane, Japan Mthembu, Andries Oliphant, Jim Peron and Enoch Sithole. As required by the constitution,  the chair and deputy chair  were elected by the executive members at their first meeting after the AGM. Raymond Louw was elected as chairperson and Mandla Seleoane as deputy chairperson. Mr J P Louw resigned from the committee last month due to time constraints.

The Executive Committee has met 11 times (once a month) to discuss practical and policy matters relating to the FXI. In addition to the already existing Freedom of  Expression Defence Fund (formerly the Media Defence Fund) sub-committee, another four FXI sub-committees were established after last year’s AGM. They are the  Management sub-committee, the Publications and Training sub-committee, the Media sub-committee and the Foreign Affairs sub-committee. Various executive members were appointed to serve on these committees.

2.2 STRATEGIC PLANNING MEETING
As mandated at last year’s AGM, the Executive Committee convened a strategic planning meeting at which various issues raised at the AGM were discussed. The meeting took place from August 2-4, 1996 and its recommendations were ratified by an FXI General Meeting held on 31 October 1996.

The staff of the FXI also undertook a staff strategic planning meeting on 16 September 1996, in order to assess how the Directorate of the FXI was functioning and to define and assess each staff member’s role.

2.3 FXI STAFF
Nine posts exist in the FXI at present. Five are filled on a full-time basis and four on a part-time basis. The current posts and their incumbents at the time of writing are:
Full-time:
Executive Director – Jeanette Minnie (resigned with effect from the end of May 1997)
Information and External Campaigns Officer – Raashied Galant
Researcher/Lobbyist – Ike Hloka
Publications and Training Co-ordinator – Jane Duncan
Administrative Assistant – Mpho Masilo

Part-time:
Co-ordinator of the FXI’s Defence Fund – Alex Kuhn
Office Manager – Tracy Klass
Accountant – Gerry McIntyre
Librarian – Winnie Nyabeni

The following staff changes took place over the year:
* The Executive Director, Jeanette Minnie, resigned her position with the FXI at the end of last month (May) to take up the position of Executive Director of the Media Institute of Southern Africa (MISA) in Windhoek, Namibia,  from August 1.  This vacancy was advertised and short-listed applicants were scheduled to be interviewed by the end of last month (May).
* Jane Duncan’s post was expanded to include co-ordination of  publications, educational campaigns and training courses.
* Alex Kuhn, who previously served as both FXI Office Manager and co-ordinator of the FXI’s Defence Fund, resigned her position as Office Manager at the end of April this year. She is continuing, however, on a part-time basis as the FXI’s Defence Fund Co-ordinator.  Tracy Klass was appointed on a half-day basis as the FXI’s Office Manager from May 1.
* Raashied Galant, who was appointed as an assistant to Jane Duncan in a development post in terms of the FXI’s affirmative action programme in September 1995, was promoted to the position of  Information and External Campaigns Officer. His duties include editing the FXI’s monthly newsletter, the FXI Update, recording and disseminating freedom of expression violations in South Africa and maintaining the FXI’s  Internet World Wide Web site.
* The FXI’s Administrative Assistant, Mpho Masilo, is still continuing in her position.
* An additional permanent post was created earlier this year with funding granted by the European Union Foundation for Human Rights for the position of  a Researcher/Lobbyist in the FXI.  The post was advertised and Ike Hloka was appointed from over 70 applicants to fill this position from the end of April this year.

2.4 STAFF TRAINING & DEVELOPMENT

Staff  constantly require further training and development. In particular, advances in technology  require further skills training and staff in development posts need to have their skills enhanced. The following courses have been attended:
Junior Administrative Officer (Development Post): Word perfect 3.1 course, Business English course; Office Management course.
Assistant Publications Co-ordinator (Development Post): Training in Publishing and in “http” (Internet) publishing.
Publications Co-ordinator: Training in Publishing and in “http” (Internet) publishing.
Office Manager & MDF Co-ordinator: Windows 3.0 course, Sangonet (e-mail) course
Executive Director: Sangonet (e-mail) course

3. PROJECT ACTIVITY

3.1 THE FILMS AND PUBLICATIONS BILL

During  1995 and 1996 the FXI made at least five written submissions and two oral submissions to various bodies in Government about this Bill. One of these submissions was distributed to all members of Parliament. We recorded serious reservations about a number of features of the Bill.
The FXI also held a conference in August 1995 to provide theoretical and analytical insights into the pornography and hate speech debate, particularly with a view to the debates surrounding issues pertinent to this legislation and subsequently published a book in 1996 entitled “Between Speech and Silence: Hate Speech, Pornography and the New South Africa”.

Parliament passed this Bill on August 29 last year despite calls by the FXI at a press conference and in radio and television interviews not to do so. Far-reaching amendments  were made to the Bill in secret session by the Parliamentary Portfolio Committee on Home Affairs just days before the law was adopted. After Parliament passed the Bill we called on the Senate not to ratify the bill.  The  Senate Committee on Home Affairs held another round of public hearings on the Bill at which the FXI testified, but to no avail, and the Senate approved the Bill on September 16 with only minor amendments.

The far-reaching amendments which took place during secret session included extending the definition of “publication” to include all “statues, carvings and models” as well as “live entertainments”. This happened shortly after the deputy Speaker of Parliament, Ms Baleka Kgotsitsile, objected to a ceramic work of art portraying female genitalia. The amendments also  introduced an additional definition of hate speech based on gender, and became the first law to impose restrictions on hate speech as defined in the Constitution.

In addition, it was decided that office-bearers of political parties could be nominated by the public for appointment to the committees of the Publications Board which will apply this law. This raises the spectre of political control over films, publications, plays and sculpture.

The FXI is deeply disillusioned at the manner in which the Film and Publications Act has been dealt with and its final formulation. The committee’s secret deliberations and the Act itself are contrary to the democratic and transparent principles which the ANC-led government claims to uphold.  It bodes ill for a culture of freedom of expression in the new South Africa. We intend to vigorously monitor the decisions of the committees of the Publications Board and its Appeal Board, and some of our executive members are in favour of a new campaign against this Act.

3.2 THE TRUTH AND RECONCILIATION COMMISSION
(See also section on the Freedom of Expression Defence Fund)

The FXI was approached by the Truth and Reconciliation Commission in the latter part of last year to conduct a preliminary investigation into the feasibility of the TRC holding  a special hearing into the role of the media under apartheid.

The FXI was of the view that such hearings should be held so that the role of the State in controlling and regulating the media during the apartheid era in furtherance of its policies could officially be placed on record.  The consequences of state censorship, control and regulation of the media in terms of gross human rights violations should be recorded to serve as a warning to present and future governments about the importance of preserving a free, diverse and independent media.

The TRC and the FXI met on 31 October after the FXI had canvassed in writing and telephonically key representatives of a broad and inclusive range of media organisations on their views about whether the TRC should hold such a hearing. Since no substantial objections to the TRC’s proposal, or to a proposal that  the FXI co-ordinate research into a number of clearly identified themes,  were received, the TRC requested the FXI to conduct the relevant research.

During December,  however,  a number of media organisations objected to the role of the FXI as an “intermediary” for the TRC, arguing that it would be wrong for any media organisation in the country to play this role. These statements were followed by a number of personal attacks
on mainly the FXI chairperson, Raymond Louw, and one of its executive members, Clive Emdon, to the effect that they had formerly occupied key managerial roles in the white-controlled English-language press, and that an FXI investigation under their control was bound to be
a “whitewash” of the history of this particular sector.

The FXI disputed both allegations and pointed out that its brief from the TRC was being misunderstood or willfully misrepresented. If the FXI recommended to the TRC that media hearings be held, these would be under the control of the TRC and media practitioners and institutions would be testifying directly to the TRC. Therefore the contention that the FXI was acting as an intermediary was entirely incorrect.  Furthermore, from the outset, in recognition of a potential conflict of interest, the FXI decided to appoint  independent researchers from outside its ranks to conduct the preliminary investigation. The first of these were appointed from December 1 last year, some days before the first allegations that an FXI investigation would not be impartial. It was also pointed out that Clive Emdon had never occupied a managerial position, editorially or otherwise, at any point in his career as a journalist.

These and many other clarifications were contained in a lengthy press statement issued by the FXI at a press conference early in January.  The TRC nevertheless decided to call off the official investigation by the FXI.  It announced that it would establish its own committee to conduct an investigation, but requested the FXI in a public statement  to continue with its own investigation and to submit its findings to the TRC along with any other bodies or individuals who wished to do so. The FXI agreed, but only after a personal protest to the TRC for not having honoured an undertaking to meet with the FXI to hear its responses to the various allegations before making a final decision.

Two full-time researchers and one part-time researcher from outside the ranks of the FXI were appointed to conduct the investigation from the beginning of December. In mid-February a third full-time researcher, a foreign national, as well as four part-time  foreign graduate assistants, were additionally appointed to the project.  They were due to complete their research reports by the end of last month (May).

3.3 LEGISLATIVE REFORM
3.3. 1  NATIONAL ARCHIVES ACT
The FXI made a submission to the Portfolio Committee on Arts, Culture and Language, Science and Technology on the new National Archives of South Africa Bill. The bill makes provision for the circumstances in which documents in the national archives may be destroyed. The National Archives Commission set up in terms of the bill would determine when documents could be destroyed. The FXI recommended that members of civil society, and not only archivists and librarians be appointed to the Commission, because they would bring a different perspective to bear on what might constitute socially, politically or legally important documents which should not be destroyed. We were also concerned that the public’s right to access to information might be hindered by the provision in the bill that records not older than 20 years need the National Archivist’s permission to be viewed.  Documents like the Independent Electoral Commission records which went straight to the National Archives after the 1994 elections might therefore not be accessible.

3.3 2  LEGAL DEPOSIT ACT
The FXI made a submission to the Task Group drafting a new Legal Deposit Act and attended two seminars on the new bill. The essential problem which we saw in the bill was the need to weigh the benefits of compulsory legal deposit against the right to free creative expression. As the definitions in the bill stand, even if only one copy of a document is in existence, this could be claimed, free of charge, by the legal deposit libraries. This would have a particularly serious effect on artists who work in the medium of printing, where only one copy of a book or portfolio exists. The FXI’s criticism of the bill was made at a seminar held in May this year, and was accepted by the Task Group, which promised to look into the definitions in the bill.

3.3.3  AMENDMENT OF ALL LEGISLATION OFFENDING FREEDOM OF EXPRESSION
The FXI together with the Media Project based at the Centre for Applied Legal Studies (CALS) have for the past two years been engaged in research into legislation still in force which contravenes the constitutional provisions on freedom of expression and access to information. The focus of the research has changed, however, in that it is no longer aimed at a so-called Omnibus Act to repeal legislation en bloc. The focus has been shifted towards identifying those statutes which are most offensive from a freedom of expression and information point of view. These are concentrated on individually and consideration is taken in each case about what would be the best way to protect freedom of expression. A comprehensive document detailing offensive legislation has already been prepared by the Media Project. The actual lobbying and policy work is done in consultation with the FXI.  The recently established South African National Editors Forum (SANEF) has indicated that it also views the repeal of such statutes as an urgent priority. The FXI therefore hopes to be able to collaborate with  SANEF on this project.

Late last year the FXI sent a copy of the Media Project’s research to the President’s Director of Communications, Joel Netshitenzhe, requesting State assistance for a civil society task group to undertake the work of identifying and recommending amendments to the legislation still infringing media freedom. The FXI has recommended a voluntary task group set up by civil society, but which is able to call upon the legal expertise of State lawyers.  The FXI notes in the letter, “The research project by FXI and CALS has been continuously hampered by our financial inability to afford the legal costs of lawyers who will have to spend a number of months on this work.” We recently contacted Mr Netshitenzhe and are again making efforts to revitalise this project. The request to Mr Netshitenzhe follows previous requests to a range of Government officials including the  deputy president, the ministers of justice and law and order and the Speaker of Parliament. We were pleased that the Comtask Report recommended the FXI’s proposal of a civil society task group assisted by State lawyers and we are awaiting the State’s response in relation to these recommendations.

3.3.4  SECTION 205 OF THE CRIMINAL PROCEDURE ACT – “REVEAL YOUR SOURCES” PROVISION
The issue of whether there should be a provision in law which can be used to compel journalists to reveal their sources, both confidential and otherwise, is a matter of great contention among the media. At a conference organised jointly by the FXI and the Human Sciences Research Council held from 8 to 10 November, called “Media for Democracy in South Africa”, this issue was debated at length by the delegates, but no consensus was reached. However, it was agreed that the provision as it stands at the moment is unsatisfactory, and that either it should be abolished altogether, or it should be amended to place the onus on the state in the first instance to show a compelling need to use the provision against a journalist. The latter option would provide some protection to the journalist, and the former option complete protection. FXI chairperson, Raymond Louw, has also pointed out that there is provision in the Act for a “just excuse” for not divulging sources and that the   instrumental role of journalists in facilitating a free flow of information should provide such an excuse.  The FXI and the UK based International Centre against Censorship, Article 19, have agreed to engage in joint activity on the question of s205 this year, as soon as Article 19 opens its Africa office in Johannesburg.

The provision was used during last  year to subpoena various journalists, particularly during the PAGAD demonstrations in Cape Town in August. The FXI issued a statement condemning the state’s use of s205. During last year’s Commonwealth Press Union annual meeting, attended by FXI Chairperson Raymond Louw, the President of the Constitutional Court argued that journalists should not have a status different from any other individual who must reveal sources when it is in the public interest to do so.  Mr Louw wrote a rejoinder which was published in the Business Day and reprinted in the FXI Update and also met the President of the Court and the Chief Justice with the SA National Editors Forum at which journalists’ disquiet over the President’s speech were noted.

4. EDUCATION AND TRAINING ON FREEDOM OF EXPRESSION

4.1 PRINT MEDIA

In the first half of 1996, the publications section of the FXI developed a series of educational articles on freedom of expression. These were run in the Sowetan newspaper over a period of eight weeks, in advertising space paid for by the FXI at 25% less than the standard advertising rate for half a tabloid page. The edu-ads elicited a large response, with dozens of people telephoning or writing to the FXI to comment or to be counselled on freedom of expression matters affecting them directly. In addition, numerous  commercial and community newspapers approached the FXI to also run the edu-ads after having seen them.

On the basis of the educational advertisements run by the FXI in the Sowetan,  the FXI was invited by the Wesley Guild church group in Diepkloof, Soweto, to run an information workshop on freedom of expression. The ads also ran in West  – a community newspaper in the North-West province – from July to October last year to complement a series of workshops we ran for a community media course. The ads were also featured, free of charge last year, by the Goldfields Tribune in the Free State.

Our experience with these edu-ads has led us to believe that we need to expand our educational activities in the coming year. It has shown us that there is a great deal of public interest in freedom of expression – particularly with regard to emotive issues like hate speech, pornography and religion – and that we should tap into this interest to argue against censorship as a legitimate means of controlling material that many people may find offensive. One of the most difficult realities that the FXI has had to face in speaking on public fora and making public submissions is that huge numbers of people actually favour greater rather than fewer restrictions on freedom of expression.

We cannot pretend that these views do not exist, and the FXI has to consider strategies to influence public opinion in favour of greater freedom of expression, by targeting the mass media as vehicles for educational campaigns. We are therefore planning a range of activities to expand on the Sowetan edu-ads in print, and also to produce them for the electronic media.

Also, this educational campaign should be used to inform people about their constitutional rights to freedom of expression and access to information, how to exercise these rights and what to do if these rights are violated. In addition, these activities should focus on sensitising people to the role of the media  in a democratic society, and to how to engage the media to ensure that it does provide different communities with a voice.

4.2 TRAINING

In the first half of 1996, the FXI ran two workshops on the Open Democracy Bill for the ML Sultan Technikon in Durban and as part of a course offered by the Institute for the Advancement of Journalism. The Deputy Chairperson of the FXI also ran a session on limitations to freedom of expression at the Communications Department of the University of South Africa, and a session together with the MDF co-ordinator on the Bill of Rights, freedom of expression and the Films and Publications Bill, for the Journalism Department of the Pretoria Technikon. These activities – coupled with ongoing requests for workshops in a range of freedom of expression themes – led us to identify training as an important growth area of activity for the FXI, answering real needs.

In July- August, the FXI ran a series of three all-day workshops for a community media training course run by a Rustenburg-based Non Governmental Organisation (NGO) called Talent. The NGO has over the years set up and run a newspaper called West and a community radio station called Radio Mafisa. The workshops dealt with freedom of expression, the Bill of Rights, the law of defamation, hate speech, media ethics and freedom of expression, provincial and local government and access to information, and media diversity and the economics of community media.

The publications co-ordinator of the FXI organised these workshops, and trainers were drawn from the FXI Executive and the FXI membership. The workshops proved to be highly successful, and participants who completed their course received in-house press cards from Radio Mafisa shortly afterwards: these were presented by the FXI Deputy Chairperson at a ceremony in November. We are engaged in ongoing discussions with Radio Mafisa concerning collaboration on a civic education programme, involving community media, residents of Rustenburg and the Rustenburg Town Council.

One of the rewarding aspects of our experiences in the Rustenburg area was the extent to which we were able to integrate training with a media campaign. Apart from running the edu-ads in West, we also participated in numerous radio programmes on the radio station, one of which was broadcast twice, and on both occasions, was voted programme of the week. This has resulted in us reaching more people, and in another development, the editions of West featuring the edu-ads were prescribed by an English teacher, who participated in our workshops, for his Standard 9 and 10 pupils.

In April 1997, the FXI ran a two-day workshop for Soweto Community Radio on court reporting and media ethics in relation to freedom of expression. The course was run by the Executive Director and the co-ordinator of the MDF.

Other training activities are in the process of being schduled. Some of the training that has been scheduled is listed below:

Funding has been provided to the FXI by the European Union Foundation for Human Rights to undertake a series of government/media seminars involving local and provincial governments.
These seminars are in the process of being organised, with dates having been set for three at provincial government level, and one at local government level (we are obliged to run five for provincial government, and a maximum of five for local government). The intention is to provide an interface between governments and the media who report directly on them to discuss the constitutional role and obligations of government in South Africa and the role of the media in a democracy.
The FXI is aware that tension exists between some media practitioners and governments at local and provincial levels, to the extent that meaningful communication and a free flow of information in the public interest is sometimes threatened. These seminars will attempt to provide a dialogue between these parties without undermining the independence of the media and by emphasising the obligations of both parties to facilitating the public’s right of access to official information.

The FXI prepared a series of proposals involving seminars on aspects of freedom of expression to the Independent Newspaper Group. These proposals have been accepted, and dates are being scheduled for these activities.The seminars deal with the following themes: the Constitution and press freedom rights, media ethics and codes of conduct in relation to freedom of expression and government/media relations. These seminars are scheduled to be run in Johannesburg, Durban and Cape Town.

In November, we are scheduled to run a week long training programme on human rights and the media for the Institute for the Advancement of Journalism.

4. 2 RADIO PROGRAMMES

This year the FXI has ventured into the area of radio production to extend public education on the rights to freedom of expression and access to information. We are currently involved in negotiations with the SABC for the production of a series of radio feature programmes. The FXI will be actively involved in the scripting and production of these programmes and will also retain the copyright to these programmes. They will be produced in several indigenous languages and will be structured in such a way that radio stations can use them as a lead-in for phone-in shows or panel discussions. The programmes will be broadcast by the SABC and the FXI hopes to be able to make them available to community radio stations afterwards.

5. FXI CONFERENCE ON MEDIA FOR DEMOCRACY IN SOUTH AFRICA

A joint conference on the media and democracy was held from 8 to 10 November 1996 by the FXI and the Centre for Socio-Constitutional Dynamics at the HSRC. The purpose of the Conference was to stimulate research on how the media can contribute to democracy, to raise awareness amongst stakeholders of the issues involved and to provide a programme of action to assist with the democratisation of the media in Southern Africa. Topics covered included the role of the media in consolidating democracy; civil society and the media; an analysis of the media ownership in post-apartheid South Africa; control of the media, including transparency and accountability of the media, voluntary versus statutory regulation of the media; and the application of the bill of rights to the media. Speakers were drawn from South and Southern Africa and from Australia. Approximately 100 delegates attended, ranging from the media to academics to political party officials.

6. REPRESENTATIONS TO COMTASK

Following the Government Conference of Communicators held in Arniston from August 25 – 27, 1995 at which the FXI chairperson chaired a session, Deputy President Thabo Mbeki’s office appointed a Task Group to investigate and make recommendations on Government communications, commonly known as COMTASK. The Chairperson of the FXI was appointed a member of COMTASK. On 19 August 1996 the FXI made an oral and written submission to COMTASK on the state of government communications, as well as on matters pertaining to freedom of expression and the government. The FXI, among other recommendations, stated that the government should repeal or amend all legislation which erodes freedom of the media, and in doing so, it would send a powerful and concrete message to the media of its commitment to press freedom and freedom of expression. The FXI also recommended that a diversity of media should be encouraged through state subsidies to small, independent and community based media. We also urged that the Open Democracy Bill be passed as soon as possible. COMTASK’s report has since been presented to the Deputy President and the cabinet.

7. REQUESTS TO THE FXI FOR ASSISTANCE & INFORMATION

During the course of 1996, the FXI again responded to countless requests for assistance and information: these instances are too numerous to list comprehensively. But it should be noted that many of the requests for information over the last year have been in relation to the Open Democracy Bill.

The FXI is approached on an ongoing basis by students, local and foreign researchers, writers and journalists for information about freedom of expression, access to official information, freedom of the press and diversity of the media issues. The FXI chairperson, Mr Raymond Louw, is often consulted by various diplomatic representatives including foreign press attaches, ambassadors and a similar range of journalists, students and researchers. Requests for information and comment on freedom of expression issues have resulted in particularly the chairperson and executive director of the FXI being quoted in a range of overseas and local publications and electronic media.

8. CONFERENCES

The FXI is frequently invited to conferences and seminars. Reference is made here to some of the conferences attended during 1996/7.

Exploratory conference between Nigerian pro-democracy groups and South African civil society 29-31 March 1996. Attended by the FXI’s Information and External Campaigns Officer, Raashied Galant. The FXI contributed R10 000 to the costs of this conference.
IFEX AGM, Toronto, Canada, 10 – 15 May 1996. Attended by Assistant Publications Co-ordinator.
“Africa – Crisis and Challenge” conference organised by the Institute for the Advancement of Journalism, 6 – 8 May 1996. It explored problems facing African countries, including freedom of speech, the media and opinion. Attended by the Executive Director, Jeanette Minnie, and the Publication Co-ordinator, Jane Duncan.
Telecommunications and Broadcast Freedom Conference organised by the University of Pretoria on 30 – 31 May 1996. The conference looked at freedom of expression and regulation in the broadcast media. The Executive Director attended and chaired a session and the Publications Co-ordinator attended as well. The FXI contributed R5 000 to the costs of this conference.
A Constitutional Round Table Conference organised by the Swaziland Chapter of the Media Institute of Southern Africa (MISA) in Mbabane, Swaziland from 11 – 13 June 1996. It examined the constitution making process in Swaziland. The Executive Director attended and gave a speech on the constitution making process in South Africa.
“The Right to Know – Access to Information in African Countries” was organised by the International Federation of Journalists in Harare from 25 – 27 July 1996. Attended by the Executive Director who gave a speech on the Open Democracy Bill in SA.
“Future Search” planning commission: 15 – 17 August 1996 in Harare. The Radio Nederland Training Centre invited the FXI to participate in planning a conference in which delegates from five Southern African countries determine planning priorities for their countries over the next decade. The Executive Director attended, and was a joint co-ordinator for the conference which was held from 13 to 16 October 1996 and attended by the MDF Co-ordinator and Office Manager, Alex Kühn.
“Development in Higher Professional Education” conference held at the Technikon SA, 13-15 May 1996. Publications co-ordinator Jane Duncan gave a speech at the conference. An edited version of the speech was published in the January edition of the Rhodes Journalism Review.
Report-back colloquium of the Communications Task Group of South Africa (COMTASK). Publications co-ordinator Jane Duncan attended the conference.
Consultative Meeting between Nigerian pro-democracy activists and South African anti-apartheid activists from September 27-29, 1996. Attended by Information and External Campaigns officer, Raashied Galant.
MISA Annual General Meeting held in Malawi from 6 to 12 October 1996 and attended by the Executive Director, Jeanette Minnie. Until the end of April 1997 she was South Africa’s representative on MISA’s Regional Governing Council.
NGO Week Conference held from 2 to 6 December 1996 and focussing on a range of topics of concern to NGOs including fundraising, interacting with the government and proper administration and management of NGOs. Attended by the Office Manager.
Freedom of Information Conference held by IDASA on 21 and 22 November 1996. Delegates from the sub-region attended and discussed issues like the role of NGO’s in fighting for access to information and the passing of Freedom of Information Acts. The Executive Director and MDF Co-ordinator attended and the Executive Director and Chairperson of the FXI chaired two sessions.
* “Journalists under Fire : Media Under Siege” – African Media Forum hosted by the  United States-based Freedom Forum in Johannesburg on 11 November 1996. The  Executive Director was the opening speaker at the seminar.
*     The Chairperson, Raymond Louw, in his personal capacity also attended various media
conferences in Venice and Turkey.

9. PRESS STATEMENTS AND MEDIA PUBLICITY

Representatives of the FXI participated in a wide range of television and radio interviews during the year. These include:
* The executive director appeared on a”Two Ways” SABC TV programme on investigate reporting and the right to privacy;
* The chairperson and executive director appeared on “Q and A” SABC TV programmes on the topics of censorship and the relationship between of freedom of the press and the right to privacy;
* The chairperson appeared on a “Future Imperfect” programme on SABC TV on the theme of the media under apartheid;
* The deputy chairperson and the executive director appeared on a “Two Ways” SABC TV programme on pornography and the Film and Publications Bill;
* The deputy chairperson appeared on a “Q and A” SABC TV programme on the existence of
racially exclusive groups and organisations in the new South Africa;
* The chairperson and executive director have been interviewed on many occasions by SABC “Radio Sonder Grense”, Radio SAFM, Radio 702 as well as by community radio stations on a variety of topics including World Press Freedom Day and the controversy around the financial affairs of the Independent Broadcasting Authority.
* An article on the Film and Publications Bill entitled “Perpetuating Censorship?” by the Executive Director was published in the May edition of “LHR Rights”, the journal of the National Directorate of Lawyers for Human Rights.
* An edited version of an address delivered by the FXI’s Publications Co-ordinator, Jane Duncan, on the danger of standardising journalism education under the National Qualifications Framework, was published in the December edition of the Rhodes Journalism Review.
* Die Beeld newspaper published a feature article by the Executive Director on the legal dilemma facing journalists in terms of protecting confidential sources of information.
* New Nation newspaper published an article by the Executive Director on the access to information issues at stake in the bail application of Dr Wouter Basson, allegedly the founder of the former SADF’s Chemical and Biological Warfare Programme.
* New National also published an article by the Chairperson on the funding of the SABC.
* The United States-based Freedom Forum published a recorded public interview with the executive director in their publication “Journalists under Fire : Media under Siege” based on a seminar hosted by the Freedom Forum in Johannesburg on November 11, 1996.
* The chairperson published an opinion piece in Business Day on the right of journalists
to protect sources of information
* The deputy chairperson published an opinion piece in Business Day in reply to criticism
of the FXI’s role in conducting a preliminary investigation into the media under apartheid
at the request of the TRC.

Many press interviews have also taken place with FXI representatives. Most of these are in the form of responses to developments with implications for freedom of speech or access to information.

A variety of media statements were issued over the past year including on:
* The danger to the independence of broadcasters in South Africa following calls
for the scrapping of the IBA in the wake of disclosures of financial impropriety.
* Concern about censorship of medical practitioners in the Northern Cape expressing doubt
about the competency of some Cuban doctors in their area after a number of incidents were reported to the Medical and Dental Council.
* Press freedom abuses in Nigeria. Statement issued on June 12 1996, the third anniversary of the annulled presidential elections by the Nigerian military.
* Press freedom abuses in Zambia following a meeting between the FXI add the SA acting director of Foreign Affairs for Southern and Eastern Africa.
* The Zambian government having temporarily withdrawn legislation to establish a statutory media council in Zambia. .
* The SA Human Rights Commission being urged by the National Party to establish guidelines for public statements by public officials, after so-called hate speech statements against Mr FW de Klerk by three ANC leaders.
* The arrest of City Press reporter Mapule Sibanda after she handed narcotics to the police with a request that they conduct forensic tests on them. She purchased the drugs during the scope of a news investigation.
* The reponse of the FXI in relation to criticism of its role in conducting a preliminary media investigation for the TRC.
* The TRC denying the FXI the right of reply by calling off a meeting with the FXI after meeting with other organisations who were objecting to the FXI conducting a preliminary media investigation for the TRC.
* A closed meeting of the Parliamentary Committee on Home Affairs at which far-reaching amendments are made to the Film and Publications Bill.
* An FXI appeal to Parliament and the Senate not to pass the Film and Publications Bill.
* The issuing of subpoena’s to the media to hand over all information in connection with Pagad activities in Cape Town.

10. THE FREEDOM OF EXPRESSION DEFENCE FUND

The FXI’s Defence Fund gives effect to the FXI’s strategy of litigating where appropriate in defence of freedom of speech and expression. The fund was incorporated in the FXI in 1995 at the request of its previous administrators. The purpose of the fund is to strengthen the legal and constitutional basis for freedom of expression and access to information. It focuses on precedent setting court cases, including Constitutional Court cases and cases where the media, film and video producers, artists and others are confronted by attempts to censor them.

Until recently the fund was known as the Media Defence Fund. This name, however, did not reflect the fact that it funds any matter which relates to freedom of expression and access to information, and not only cases pertaining to the media. To remedy this, the MDF sub-committee suggested a name change, which was supported by the FXI Executive. The fund will be known from now on as the Freedom of Expression Defence Fund. The new name will also clearly identify it as a fund of the FXI.

The FXI’s Defence Fund invites lawyers, organisations, newspapers and other affected individuals in need of legal financial assistance to contact the Fund. The applications are considered by a sub-committee of seven persons appointed by the FXI Executive, including several media lawyers. They meet once a month to deal with new applications for funding and to assess cases which have already received funding. Two of the sub-committee members are also FXI Executive Committee members. During the last year its members were Claire Wright (in the chair), Clive Emdon, Malcolm Fried, JP Louw, Moira Mokuena, Mafika Sihlali and Raymond Louw. During the course of the year, JP Louw and Malcolm Fried tendered their resignations due to work-related pressures. The FXI’s Defence Fund Co-ordinator, Ms Alex Kühn, administers the Fund. The Fund makes a quarterly written report to the FXI Executive Committee.

The fund pays lawyers at a human rights tariff, set by the sub-committee once a year, and which is substantially lower than normal professional fees.  For example, senior counsel is funded at R450 per hour which is roughly half of the professional minimum. The fund also has a set of guidelines for the disbursement of funding.

10.1 CASES FUNDED BY THE FXI’s DEFENCE FUND DURING THE PAST YEAR
ARENSTEIN v PREMIER OF MPUMALANGA

Justin Arenstein is the bureau chief for African Eye News Service in Mpumalanga, an independent news agency with a reputation for investigative journalism. Among the stories it has broken are the exposes on Eugene Nyati, Senator Patrick Mogale’s child by an underage schoolgirl, and the alleged “gifting” of farms worth hundreds of thousands of rands to National Parks Board chair Enos Mabuza. The Mpumalanga government has attacked Arenstein on several occasions via press releases or in the provincial legislature as a racist reporter with a sinister agenda. In the latest instance, Premier Phosa announced in the legislature during December 1996 that “a certain” journalist had been attempting to bribe government officials for sensitive internal documentation. Although refusing to name the journalist, Phosa listed the alleged theft of a draft report from the Auditor General’s office and subsequent articles based on this report as an example of the said journalist’s activities. Arenstein is the only journalist to have written articles based on such a draft report. In an interview with SAPA on 17 December 1996, Phosa’s spokesperson repeated the allegations made by Phosa and went on to say that the journalist had “racist tendencies” and concentrated on writing articles involving blacks who were guilty of corruption while ignoring whites who were guilty of similar offences. Arenstein has denied all the allegations against him.

The FXI’s Defence Fund paid for Arenstein’s preliminary legal advice and the drafting of a letter to Phosa demanding that the allegations be retracted and a public apology issued. To date, no response to the letter has been received from the Premier’s office and Arenstein will issue summons for defamation against Premier Phosa in the Magistrate’s Court.

BAILEY v SCHADEBERG

This matter concerns a copyright dispute involving some of the most historically important photographs in South Africa – those taken during the 1960’s by the photographer Jurgen Schadeberg. Bailey, the proprietor of Drum Magazine, is claiming that the copyright of certain photos vests in him on the basis that when Schadeberg took them, he was in Bailey’s employ. Based on a careful reading of the papers in this matter, the Defence Fund is of the opinion that Schadeberg was not in Bailey’s employ, and that the copyright of the disputed photos therefore rests with him. Should a court find the same, this would affect in practice the position of several other photographers who also worked for Drum magazine during that period. The Fund has approved R40 000, half of the funding required for the matter to proceed, with Schadeberg providing the rest.

CONWAY v NEER

Neer, the MEC for Safety and Security in the Eastern Cape, testified before the TRC that a certain security policeman allegedly assaulted and tortured him. The policeman has since sued Neer for defamation. This is the first defamation case to arise from the TRC. The FXI has long warned, based on an opinion commissioned from a counsel, that witnesses before the TRC and the media who report the testimonies of these witnesses, are not adequately protected.

HALL v WELZ, CHAUCER PUBLICATIONS & OTHERS

An insidious form of covert censorship is the institution of legal proceedings against the media which have as their ultimate objective the closing down of a critical voice because of the legal costs incurred. It seems that this was one of the thwarted objectives of the plaintiff in the South African case Hall v Welz and others.

Martin Welz is the editor of noseWEEK, a small independent publication well known for its investigative journalism and biting style, published by Chaucer Publications. Dr Robert Hall, born and reared in America, but who has resident status in South Africa and describes himself as a “detribalised South African convert” claims that he was defamed by an article printed in noseWEEK, in which it was alleged, among other things, that he is treated by the South African Reserve Bank as a non-resident and was therefore allowed to do repeated finrand deals which, by law, are denied to permanent residents. In 1981 Dr Hall formally applied for, and was granted, permanent resident status in South Africa and his passport was so endorsed. Hall issued summons claiming R1,5 million in damages from noseWEEK. He also sued The Argus for its follow-up of the noseWEEK story.

The FXI’s Defence Fund raised the bulk of the funds for noseWEEK’s defence. Judgement was handed down by the Cape Provincial Division of the Supreme Court on 27 September 1996. Judge Conradie held that the defendants had proved that what they had said about the plaintiff was substantially true and in the public interest. The plaintiff’s claims were therefore dismissed. It is unfortunate that the Court did not accept the constitutional arguments placed before it and held that the law had not changed with regard to defamation and the media. At the outset of the trial, noseWEEK and The Argus launched a major application to attempt to persuade the Court that the onus of proving truth in the public interest, after the decision of Holomisa v Argus Newspapers Ltd, no longer rested on them. The Court held, however, that the law had not changed.

Having lost the case, Hall applied to the Court for leave to appeal which was denied. A settlement with regard to costs was then reached with Hall.

FXI & OTHERS v MAGISTRATE OF THE REGIONAL COURT, PRETORIA

Dr Wouter Basson was a brigadier who headed the former SADF’s Seventh Medical Battalion who allegedly founded the SADF’s chemical and biological warfare programme. Basson was arrested in January 1997 when he was allegedly caught handing over 1000 tablets of Ecstasy.
The Magistrate in the bail hearing for Basson declared significant portions of the hearing in camera. The FXI, along with two newspapers, the Sunday Times and Business Day contested his ruling based on argument about the public’s constitutional right of access to information. As a consequence the Magistrate ruled that persuasive evidence for a closed hearing had not been produced and that the bail hearing would proceed in open court. However, the magistrate would not lift the embargo from the previous day’s in camera record. All the applicants, including Die Beeld and The Star who at this point joined the case, applied to the High Court to review this refusal to lift the embargo. The application was successful. However, Basson joined by the SANDF and the statutory committee on the Non-Proliferation of Nuclear Armaments immediately again applied to the High Court for certain sections of the disputed record to be embargoed, and this was granted. At present the FXI is still pursuing this case in an attempt to lift the new embargo and to gain access to records confiscated from Basson during the initial raid after his arrest. The Fund is paying the FXI’s costs in this matter.

FXI & MAIL&GUARDIAN (M&G) v SANDF

The FXI is bringing an application to the High Court in Cape Town to challenge an in-camera ruling of the court martial hearing of Staff Sergeant Herman Pfeiffer and Corporal Dawid Booysen. They are charged with attempting to make photocopies of official documents, publicly questioning the competence of their commanding officer and leaking sensitive information. The case involves attempts by Military Intelligence (MI) to investigate allegations of local and international arms smuggling by the Unit, Group 31, to which they were attached.

In terms of the Defence Act of 1957, court martials are generally held in open court in the presence of the accused, but may be held in camera if this is in the “interest of good order or public morals or the administration of justice or for reasons of security.”

The FXI and Mail & Guardian’s request that the court martial be held in open court was denied by the court martial and the FXI is now requesting the High Court to review this decision.

McNALLY V MAIL&GUARDIAN

In this case, the Attorney General of Kwa-Zulu Natal, Tim McNally, sued the M & G for defamation, following their publication of a critical article on him. The M & G alleged that a critical analysis of his conduct as the senior public official in charge of prosecutions in Kwa-Zulu Natal shows that he has not done enough to arrest and charge the perpetrators of violence in the province.

In effect, the facts of the case are such that it is the ideal vehicle with which to introduce the Sullivan principle into South African law.  The New York Times v Sullivan case in the United States held that the constitutional guarantee of freedom of speech precluded a public official from recovering damages for a defamatory falsehood relating to his/her official conduct unless s/he proved that the statement was made with “actual malice”, that is, with knowledge that it was false or with reckless disregard as to whether it was false or not. This principle enables the press to inform the public about matters which are of concern to them, but which cannot be proved in a court of law, for reasons such as witnesses being intimidated or going missing. Should the court allow the introduction into our law of the Sullivan principle, the effect will be to allow more in-depth probing and comment on public officials by the press, without fear of being sued for defamation.

RADIO 786 CASE – COMPLAINT TO IBA

Dr Ebrahim Moosa co-ordinated a statement in November 1996, signed by about 60 religious leaders, which was supportive of PAGAD’s anti-crime agenda but critical of its violent methods. The community radio station Radio 786, which is perceived in many quarters as the ideological mouthpiece of the Islamic Unity Convention, Qibla and PAGAD, then allegedly responded to the statement through its broadcasts in such a way as to place Dr Moosa in a bad light and to incite public opinion against him. As a result, he and his family had received abusive and threatening phone calls. His motives in approaching the IBA’s complaints committee were to try and stop the station from maligning him and to obtain an apology for the harm to his reputation. He emphasised that he did not want the radio closed down, but sought to oblige the station to report truthfully and with due regard for ethical journalistic practices.
The Fund decided to pay Dr Moosa’s legal costs incurred in making his complaint to the IBA. It did this so to ensure that the dispute could be effectively aired. The Fund in no way supports the closure of Radio 786, but rather the building of a culture of freedom of expression, and tolerance for a multiplicity of voices including political and religious dissent. The Fund believes its contribution in this instance is facilitating diversity of opinion.

RAMAINOANE v ATTORNEY OF LESOTHO

Mr Ramainoane is the editor of the independent Lesotho newspaper MoAfrica, which takes a critical stance against the Lesotho government. Recently, the government issued an order that no government or “parastatal” advertising should be placed in the paper because of its negative approach to the government. Mr Ramainoane seeks to have the order overturned on the basis of administrative law. The Lesotho government’s approach to freedom of the media has long given cause for concern. The Fund is supporting Mr Ramainoane in the hope of obtaining a court ruling favourable to the freedom and independence of the media.

SKOTNES v SA LIBRARY: LEGAL DEPOSIT ACT

In this case, Pippa Skotnes, a practising artist and senior lecturer in the Fine Art Department at the University of Cape Town challenged in the Appeal Court a Cape Supreme Court decision ordering her to deposit with the South African Library a copy of a limited edition of books on San intellectual traditions. This book, called “Sound from the Thinking Strings”, is made in the medium of “the artist’s book”. The Cape Provincial Division’s decision in SA Library v Skotnes indicates that in circumstances where only one copy of a publication exists, that copy would have to be handed to the SA Library in terms of the Legal Deposit Act. The judgement goes on to say that a reproduction of the publication would not be sufficient to satisfy the requirements of the Act. Skotnes, however, lost the appeal.

This case has been controversial in the public domain and within the ranks of the FXI’s executive. Sympathy exists for the purpose of the Act which is to ensure that all publications produced in South Africa are placed in a national archive so that they can be accessible to the public. In the FXI’s view the Act needs to be improved to recognize the financial and technical production problems in relation to “the artist’s book” and to make allowance for the deposit of
quality copies in State libraries, particularly in cases where originals have been placed in public or academic art galleries where they can be examined and researched by members of the public.

SPENCER v JASON

The Cape Supreme Court issued a temporary interdict restraining photographer Fanie Jason from, among other things, photographing the Earl of Spencer without his consent, unless such photographing occurs while he is attending a “public function as a public figure”. Two issues were at stake: The threat to the principle that a public figure can be photographed at any time in public; and the assertion that Lord Spencer, Princess Diana’s brother, is not a public figure. Before this matter was argued the parties entered into settlement negotiations. Jason is entitled in terms of the agreement to take photographs of the Earl of Spencer in public places but agreed not to take photographs of Spencer within the privacy of his home.

STATE v HARBER & OTHERS (THE STAAL BURGER CASE)

The defence in this case sought to establish that under certain circumstances, it is justified to breach an individual’s right to privacy where there is an overwhelming public interest to do so.
In this important case, the editor of the Weekly Mail (now the Mail & Guardian) was charged with and later found guilty of crimen injuria for having bugged CCB operative Staal Burger’s office. The issue of who is responsible for third force violence in the country prior to the elections was, and continues to be, a frustrating one, with little or no hard evidence being available. The Weekly Mail (now the M&G) has over the past few years published a number of articles which related to the violence in the country and the allegations it made subsequently proved to be correct. The Magistrate’s Court found Harber guilty. The matter has now gone on appeal to the High Court and judgement is awaited.

STATE v RADIO TUKS JOURNALISTS

The University of Pretoria experienced student dissent about its choice of a new Chancellor. The university obtained an interdict banning certain actions on campus. In contravention of the order, a press conference was organised by the students which three Radio Tuks journalists attended in their capacity as student journalists. The SAPS arrested all those present at the press conference including these three journalists. All were to have been charged with contempt of court. The Fund sponsored the journalists’ defence because it believes that journalists have a right and a duty to receive and impart information both on “legal” and “illegal” activities. Charges were ultimately withdrawn against all the journalists arrested including those from Radio Tuks.

YOUNG & ANOTHER v MAIL & GUARDIAN

The case also seeks to establish the New York Times v Sullivan principle in our law (see McNally versus Mail & Guardian above).

The case results from a story published in the Mail & Guardian in 1995 concerning allegations of nepotism and corruption in the former Department of Education (DET) in which the Young’s were named.

11. PUBLICATIONS
11. 1 UPDATE

The FXI Update remains the most consistent product of the FXI in which the views of the organisation are articulated and issues pertaining to freedom of expression are highlighted. These include coverage of pertinent issues in the Southern Africa region and in other countries on the African continent. Eleven monthly issues are produced. Up to a year ago the Update was largely distributed on a complimentary basis by mail, but we have since moved to a paying subscriber base. FXI members, however, continue to receive the publication free of charge. The move to a subscriber base has not been altogether smooth and the amount of money received from subscriptions is still not able to sustain the publication. Many readers who did not respond to subscription notices were also lost. In the circumstances donor funding remains an important means of ensuring the survival of Update. The organisation envisages a vigorous marketing campaign this year to generate greater subscriptions.

11.2 FXIWEBSITE

The FXI continues to maintain its Internet site on the World Wide Web athttp://fxi.org.za/
The site, launched in March last year, includes information on the work of theFXI as well as media statements, submissions to Parliament, task groups,commissions of inquiry and publications of the FXI, including the FXI Updateand the book it published last year “Between Speech and Silence: HateSpeech, Pornography and the New South Africa”. The latest publication we haveplaced on the site is the quarterly Southern African Media Law Briefing, whichis produced jointly by the FXI, the Windhoek-based Media Institute of SouthernAfrica (MISA) and the London-based International Centre against Censorship,Article 19. Our site is also linked to a number of other sites around theworld, including the home page of the newly launched site of the InternationalFreedom of Expression Exchange (IFEX). It can also be accessed through themajor search engines which exist on the Internet.

The site was overhauled in August last year anda search engine was added. On average the site receives four “hits” aday and during the Parliamentary hearings on the Film and Publications Act wasthe second most-visited site of the Sangonet service provider. The FXI websiteis frequently visited by local and international human rights organisations,journalists, lecturers and students.

11.3 BOOKON THE THEME OF MEDIA AND DEMOCRACY IN SOUTH AFRICA

The FXI, in conjunction with the Human Sciences Research Council (HSRC), ispreparing publication of its second book. The book stems from a conferencehosted jointly by the two
organisations on the theme of Media and Democracy in South Africa held fromNovember 8-10 last year. The editorial deadline for the book was the end oflast month (May) and it should be ready for release towards the end of August.It will contain contributions by a variety of conference speakers supplementedby additional research.

The bookis being edited by the FXI’s publications co-ordinator, Ms Jane Duncan, and theFXI’s deputy chairperson and Acting Head of the Centre of Socio-ConstitutionalDynamics at the HSRC, Mr Mandla Seleoane. They have also written acomprehensive introduction to the theme of the book.

The book will be distributed by the HSRC and apre-publicity campaign is being planned with its marketing department,especially with a view to universities and technikons who may wish to considerthe book as prescribed curriculum material. The FXI’s previous book,”Between Speech and Silence”, is prescribed in the CommunicationsDepartment of the University of the North-West and the media law course of theDepartment of Journalism and Media Studies at Rhodes University. It is alsoused as a reference in the media law course of the Department of Journalism atthe Technikon Northern Transvaal. “Between Speech and Silence” waspositively reviewed by a number of South African journalists who recommendedthe book as serious and, in some cases, as essential reading for human rightsstudents and researchers.

11. 4OTHER PUBLICATIONS

* The FXI issued a special report on Human Rights Day ( March 21, 1997) whichevaluated the status of the rights to freedom of expression and access toinformation in South Africa. The report was issued a second time on World PressFreedom Day (May 3, 1997). It is available on the FXI’s World Web Site. The report was issued to the print and broadcast media on both days.
It was also issued to 75 individuals and organisations on the FXI’se-mail group list, as well as to all electronic subscribers of the Sangonet(South African NGO Network) service provider.

* TheFXI’s e-mail group list is used for the local and international disseminationof FXI press releases and more recently for the electronic dissemination ofweekly monitoring reports on South African media and freedom of expressiondevelopments and incidents of censorship.
Recipients of the weekly monitoring report include IFEX and MISANET.

The International Freedom of Expression Exchange(IFEX) is an umbrella body of some 20 organisations around the world who areconcerned about freedom of expression issues. The FXI became a member of IFEXin April last year. Based in Toronto, Canada, IFEX distributes information toall member organisations via electronic mail (e-mail) on freedom of expressionviolations and attacks on media freedom around the globe. IFEX generatessupport internationally for freedom of expression campaigns as well as ensuringthat where freedom of expression abuses do occur they are met with swiftinternational condemnation and action. FXI Information Officer and ExternalCampaigns Co-ordinator, Raashied Galant, attended the IFEX annual congress inToronto last year and FXI deputy chairperson Mandla Seleoane represented theorganisation at this year’s annual congress in Lima, Peru last month.

MISANET is the electronic (e-mail) news and press alert information arm of theMedia Institute of Southern Africa (MISA) and provides a similar regionalservice to that of IFEX. The FXI became a member of MISA in 1994.

12.FOREIGN AFFAIRS

The FXI became increasingly involved in campaigns beyond South Africa’s borderslast year, mainly as a result of our government’s stepped up role and improvedstatus in the international arena. Civil society organisations abroad thus hadgreat expectations from South Africa to take a lead in human rights matters,particularly in relation to Africa. At the FXI’s strategic meeting held inAugust last year, an African policy was adopted which prioritised the SouthernAfrican region. However, this did not preclude the organisation from engagingin other campaigns beyond the region, such as the Nigerian campaign. Theinternational role of the organisation was also increased due to our associationwith the International Freedom of Expression Exchange (IFEX) and the MediaInstitute of Southern Africa (MISA). Our relationship with MISA has also beenstrengthened by the fact that the FXI’s executive director was until the end ofApril the South African representative on the Regional Governing Council ofMISA.

12.1 The Department of Foreign Affairs

Our involvement in campaigns beyond our country’s borders has meant that theFXI has become increasingly sensitive to our government’s foreign policies,particularly in respect of foreign governments who engage in freedom ofexpression violations. To this end the FXI is interested in the work andoperations of the Department of Foreign Affairs (DFA) and the extent to whichthe DFA interacts with civil society and is responsive to the concerns raisedby members of civil society.

The DFA released a discussion document last yearon the policies that should shape South Africa’s foreign relations as well asthe department’s relations with civil society in South Africa. The FXI was oneof a number of organisations that was invited to a two day seminar held inJohannesburg to obtain civil society’s involvement in the development of thedocument. Prior to this, the FXI collaborated with the Ceasefire Campaign and anumber of other civil society organisations to formulate a document in responseto the DFA’s discussion document. It was felt that the latter failed to addressadequately certain important aspects of foreign policy, including therelationship between the DFA and civil society. The FXI, in its contribution,highlighted the role civil society should play in foreign policy making andcalled among others for the DFA to respect and not restrict the foreignrelations which civil society organisations were engaged in independently ofgovernment. This document was distributed at the Johannesburg seminar. One ofthe proposals that came out of the seminar was the establishment of a foreignpolicy advisory council. The aim of this council would be to allow for regularconsultation between civil society and government on contentious issues andother foreign policy matters. The FXI will be monitoring this process since wesupport any initiative that will lead to greater civil society participation ingovernment.

12.2South African Nigerian Democratic Support Group (SANDSG)

The FXI remains a member of the steering committee of the SANDSG. Last year thesupport group organised a number of campaigns to highlight the situation inNigeria while also issuing regular press statements and conducting regularradio interviews. Members of the support group also organised public seminarson issues relating to Nigeria. On June 12th last year, the anniversary of theannulled 1993 elections, a protest march was held outside the Nigerian HighCommission premises in Johannesburg. The FXI also issued a press statement onthis date in which it pointed out that the deteriorating human rights situationin Nigeria had led to a severe clampdown on the media, including the arrest andtorture of journalists, and the fire-bombing of newspaper offices.

Aprotest was also held on November 10 to commemorate the first anniversary ofthe hanging of Ken Saro Wiwa and the eight other Ogoni rights activists and todemand the release of all political prisoners in Nigeria. The support group wasable to secure a meeting last year with the Deputy Director-General for Africain the Department of Foreign Affairs, Mr Tony Mongalo, at which we were able toput forward our views and the actions which we wished our government to take inrelation to Nigeria. Our lobbying payed off in April this year when the UnitedNations adopted a resolution to appoint a special rapporteur to investigate andreport on the human rights situation in Nigeria. The South African ambassadorto the UN played an important role in arguing for the need for this rapporteur.

InSeptember last year the support group along with the International Human RightsLaw Group co-hosted a successful conference in Johannesburg for Nigerianpro-democracy activists. The conference brought together Nigerian activists andSouth Africans who had played important roles in the anti-apartheid struggle.The aim was for them to exchange ideas and share experiences on a wide range ofissues, including the pressing issue of how democratic groups in Nigeria cansurvive, and even organise, during periods of extreme repression. This was thesecond conference for Nigerian activists held in South Africa, with the firstone, also co-hosted by the support group, held in March last year.

12. 3Zambia

The FXI has closely followed developments in Zambia ever since the governmentof President Frederick Chiluba exposed its contempt for media freedom byjailing the Editor-in-Chief of The Post newspaper, Fred M’membe, for contemptof parliament last year. Earlier this year the FXI held a meeting with theActing Director General for Eastern Africa in the Department of ForeignAffairs, Mr W Zastrau, specifically to raise our press freedom concerns aboutZambia with him and to request that South Africa raise these concerns withZambia on a diplomatic level. Mr Zastrau undertook to raise these concerns in ameeting with the Zambian High Commissioner. The FXI continues to monitor thesituation with the aid of the Media Institute of Southern Africa (MISA).

12. 4 Swaziland

The people of Swaziland have been living without a Constitution and a Bill ofRights for over two decades following a Royal Decree in 1973 which nullifiedthe country’s Constitution adopted shortly after independence in 1968. The FXI,through our Executive Director Jeanette Minnie, participated in a”Constitutional Round Table” conference in Swaziland last year todiscuss ways of setting Swaziland on the road to Constitutional and democraticreform. A number of the resolutions adopted at the end of this conferencestressed the freedom of expression rights of Swazi citizens as well as theright of the media to operate freely and independently. Earlier this year thedemands for political reform in Swaziland reached fever pitch when a largenumber of Swazi workers embarked on a month long strike in support of these andother demands. The strike was held amidst the absence of fundamental humanrights and was characterised by numerous freedom of expression and associationviolations on the part of the Swazi government as well as a number ofrestrictions on the media in reporting the strike. A number of organisations inSouth Africa responded to this situation by forming the Swaziland SolidarityCommittee with the aim of providing support for pro-democracy activists in thekingdom as well as to lobby the South African government to put greaterpressure on the Swazi government to implement democratic reforms. The FXI isinvolved in this committee and will seek to step up its campaigning in respectof Swaziland.

12.5 Southern African Human Rights NGO Network

A regional network of Human Rights NGOs in Southern Africa, SAHRINGO, wasestablished earlier this year. The FXI has been participating in the activitiesof the interim structure and intends to become a fully fledged member of theregional network. The FXI was a signatory to a joint statement issued by HumanRights NGOs in Southern Africa to the SADC Heads of State Summit Opening inMaseru earlier this year, in which we urged SADC member states to ratifyinternational human rights treaties, and to ensure that the SADC Organ onPolitics, Defence and Security embraces human rights, and to ensure that SADCplays a leading role in protecting and promoting human rights in Africa.