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S ubmission to the Commission of Inquiry into allegations made against National Director of Public Prosecutions Bulelani Ngcuka and others

Our purpose in making this submission is to request you to withdraw subpoenas and requests for journalists to come forward to testify at this commission on the grounds that the constitutional principal of media freedom is violated and that great harm is done to the media in South Africa.

I am Raymond Louw, a member of the Media Freedom Sub-Committee of the SA National Editors' Forum, a member of the Freedom of Expression Executive Committee and of the Governing Council of the SA Chapter of the Media Institute of Southern Africa. I am the Africa Consultant of the World Press Freedom Committee and a fellow of the International Press Institute. I am a senior journalist, editor of the Rand Daily Mail for 10 years and currently editor and publisher of a weekly current affairs newsletter, Southern Africa Report.

With me is Ms. Amina Frense, Treasurer of Sanef and a long time broadcaster with foreign broadcasting stations and the SA Broadcasting Corporation; Simon Kimani Ndung'u, Head of the Anti-Censorship Programme at the Freedom of Expression Institute; and Jude Mathurine, Information and Advocacy Officer of Misa-SA.

This submission is made jointly by the following institutions: The SA National Editors' Forum, a body representative of editors, senior journalists and others involved in media affairs in print, broadcasting and the internet which promotes freedom of the media and freedom of expression;
The Freedom of Expression Institute, a public interest lobby group which promotes freedom of expression in all its forms and whose main founding body was established to campaign against attempts to control the media and erode freedom of expression; and
The SA Chapter of the Media Institute of Southern Africa which promotes freedom of expression in South Africa and campaigns in concert with fellow chapters in the countries in the Southern Africa Development Community to promote freedom of the media.

Supporting this submission are:
The Media Workers Association of South Africa, a trade union which supports the principles of media freedom and conducts its affairs for the benefit of its members;
The International Press Institute, the global network of editors, leading journalists and media executives in over 115 countries which promotes and campaigns for media freedom; and
The International Federation of Journalists, an international journalists‚ trade union with scores of thousands of members and affiliates which promotes and campaigns for media freedom.

Our submission is based on several issues:
a) The protection and well-being of journalists who have been called upon either by subpoena or by request to testify on certain matters to the commission;
b) The implications for the media in general and for the Constitutional rights of journalists to Press freedom, freedom of expression and access to information;
c) The physical dangers facing journalists and others as a result of journalists being forced or called on to testify before official bodies; and
d) The protection of confidential sources of information.

In making this submission we draw attention to the following sections in the Bill of Rights in the South African Constitution which underpin our arguments:
Section 7 (1) & (2) which affirms the democratic values of human dignity and freedom and lays down that the state must respect, protect, promote and fulfil the rights in the Bill of Rights;
Section 8 (1) which state that the Bill of Rights applies to all law and binds the legislature, the executive, the judiciary and all organs of state;
Section 16 (1) the freedom of expression clause which specifically enshrines the freedom of the press and other media and freedom to receive or impart information or ideas;
Section 22 which enshrines the right of citizens to choose their trade, occupation or profession freely;
Section 32 (1) (a) which enshrines the right of access to information held by the state; and
Section 39 (1) (2) & (3) which provides for consideration by South African courts of international law and foreign law.

We are deeply concerned that Constitutional rights to Press Freedom will be harmed if journalists are required to give evidence, supply materials and other information and possibly be required to identify confidential sources. The ultimate result of such harm to those Constitutional rights are that the role of the media in general in the country can be seriously harmed, if not rendered null and void. We are particularly concerned about the effects on the role of the media as "the Fourth Estate" in the political spectrum and as the watchdog of the public interest, the importance of which has been spelled out again and again by learned judges in the courts.

Journalists contend that by being seen to give evidence, the perception is gained by the public that they are being used in an extra-professional capacity as informants for the authorities, in this instance in the form of an inquiry commission.

As a consequence, public trust in the media as an impartial reporter of public affairs and as the protector of confidential information is lowered if not destroyed. The public will adopt the view that this second role, that of a police informant, renders valueless media assertions that they gather news and publish in the public interest. Their ostensible professional role comes to be seen as a cloak for a perceived role as informers for the authorities. Indeed, the journalists and his or her newspaper becomes compromised.

Journalists say that this perception by the public will prevent the flow of confidential and other information to them which is the key element enabling the media to carry out its watchdog role. People who come across misdemeanour, corruption, other crimes and mismanagement both in the public and private sector may have good reason not to disclose this information to the authorities. They then choose the media because they have come to trust that journalists will not divulge their information or identity to the authorities. Indeed, the whistleblower legislation makes provision for information being given to newspapers under similar circumstances.

If, however, journalists are seen to hand over this information to the authorities that trust will be destroyed and those sources will dry up. The result is that the watchdog role can come to an end.

The Commissions Act makes provision for a person who has "sufficient cause" not to give evidence to refuse to do so. Journalists say the potential damage to their role as journalists and the cardinal Constitutional principle of media freedom provides "sufficient cause" for them to refuse.

We believe that freedom of expression, media freedom and access to information are critical in ensuring the free flow of information and ideas and in encouraging public participation, transparency and accountability of government and other institutions of society.

Compulsion on a journalist to testify, provide information, hand over material or reveal his or her confidential sources of information violates the constitutional right to freedom of expression and freedom of the media, coupled with the freedom to receive or impart information and ideas. It has the attendant consequence of infringing the public's constitutional right to be informed.

These factors, too, could have a "chilling effect" on journalists who become afraid to pursue controversial stories.

While it is acknowledge that the purpose of the commission issuing subpoenas is to ensure that there is proper administration of justice, we hasten to point out that such purpose does not warrant the violation of a right as fundamental as media freedom. The commission has not demonstrated that there are no other means of obtaining the required information without infringing the freedom of the press.

We have also noted that the commission is prepared to hear evidence in camera and without disclosure of the identity of a witness, but we do not regard this as providing a sufficient safeguard to protect the identity of the sources or to prevent a consequent public perception that journalists are ready informants for the authorities.

We wish to point out that the sensitive issues of protecting sources and of journalists being forced to give evidence on the information they have in their possession is the subject of protracted negotiations with the Department of Justice and the SA Law Commissioners which will be compromised if the Commission persists with its subpoena.

The attention of the commission is drawn to the Constitutional Court view of media freedom expressed by Judge Kate O'Regan (in the case of Fred Khumalo & Others v Bantu Holomisa):
"In a democratic society, then, the mass media play a role of undeniable importance. They bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture.... The manner in which the media carry out their constitutional mandate will have a significant impact on the development of our democratic society."

We also point out that we have in the past campaigned strongly against attempts by judicial and quasi-judicial bodies to compel journalists to testify or reveal their sources in respect of information that they came into possession in the course of executing their normal duties. Most prominent among these is the case of Benny Gool who was subpoenaed under section 205 of the Criminal Procedure Act to testify on what photographs he had taken of a murder.

In the event this subpoena was not pursued nor were other attempts under other sections of the law directed against Gool and several other journalists and photographers to provide information of what they had seen at this murder. It should be noted that there was no question of revealing the identities of confidential sources but of being requested to supply materials and information.

Indeed, since 1994 subpoenas on journalists to give evidence about their professional activities have not been pursued for one reason or another or have been overturned in court.

We also draw your attention to The Declaration of Rights and Obligations of Journalists known as the Munich Chapter which is quite clear on the requirement on journalists to protect sources. It states that journalists should "observe professional secrecy and not divulge the source of information obtained in confidence".

The International Press Institute, the global network of editors, leading journalists and media executives in over 115 countries, states that it believes that the Commission has erred in issuing the subpoena against Ranjeni Munusamy. Rather than forcing the journalist to appear before the Commission, it should have invited her to appear leaving it to her own judgment as to whether she did so or not.

IPI states: "By refusing to follow this path, the Commission now finds itself in the somewhat unenviable position of appearing to use coercive methods to try to compel a journalist to breach her ethical duties to a confidential source. The Commission should recognise that this duty is absolutely fundamental to the work of journalists the world over and it is one that enables journalists to carry out their essential role of scrutinising government practices.

"In issuing the subpoena and by refusing to acknowledge the higher duties of the media, the Commission is placing itself on the side of those who reject press freedom and the benefits that naturally flow from it in every society.

"Moreover, IPI wishes to strongly point out to the Commission that its decision flies in the face of the judgments reached by international bodies on the subject of journalists being forced to testify. On 11 December 2002, an appeals panel from the United Nations War Crimes Tribunal in the Hague overturned a decision that former Washington Post journalist Jonathan Randal could be compelled to appear before the Tribunal.

"In reaching its decision, the panel agreed with Randal and his lawyers that the personal safety and independence of journalists could be jeopardised if he was forced to testify. The panel also stated that journalists could only be compelled if the information desired was "direct and important" to the case and could not be obtained from other sources. While the decision of the panel is not binding on the Commission, IPI would argue that it is at least persuasive".

However, we draw attention to the Section 39 of the Constitution which lays down that a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom and that they must consider international law and may consider foreign law.

We also point out that certain European countries expressly prohibit journalists from appearing in court to give evidence about their professional activities because of the dangers to media freedom. Among these are Germany and Austria.

Finally, we wish to point out that until now the public in SA have maintained their trust in the media in these situations but that has come about only because journalists have refused to give information and have, on occasion, gone to jail in defence of the principle that they will not divulge such information. It is extraordinary that journalists should be forced into a catch-22 situation and go to jail to maintain the public‚s trust in the media.

Attached to this document is a copy of the letter sent by the International Press Institute to President Thabo Mbeki and a copy of the original statement on the service of a subpoena on Ms. Munusamy by the three below-mentioned institutions.

I would now like to hand over to my colleague, Simon Ndung'u to present the case of the physical harm that journalists and others may suffer as a result of being seen to give information to the authorities.

IPI LETTER:

H.E. Thabo Mbeki
President of South Africa
The Presidency
Union Buildings, West Wing
Government Avenue
Pretoria 0001
Republic of South Africa
Fax: (+ 2712) 323 82 46 / 2573 Vienna,
9 October 2003

Your Excellency,
The International Press Institute (IPI), the global network of editors, leading journalists and media executives in over 115 countries, strongly criticises the recent decision of the Hefer Commission in South Africa to issue a subpoena against a journalist.

According to information provided to IPI, former Sunday Times (South Africa) journalist Ranjeni Munusamy received a subpoena from the Hefer Commission on 8 October. As a result, the journalist will be forced to testify before the presidential commission in the Bloemfontein Supreme Court on 13 October or face potential legal penalties for either resisting the Chairperson of a commission under the Commissions Act of 1947 or for ignoring a binding subpoena.

The issue of the subpoena against Munusamy concerns a probe commissioned by South African President Thabo Mbeki and chaired by former Court of Appeal Judge President Josephus Hefer into allegations that Bulelani Ngcuka, the National Director of Prosecutions, had been investigated by the ruling African National Congress (ANC) into whether he was an apartheid spy for the National Intelligence Agency in the 1980s.

On this topic, Munusamy was approached by a confidential source who provided her with documents and information regarding the investigation into Ngcuka. She later went to her bosses at the Sunday Times, however, the newspaper refused to publish the story. She then gave the story to a rival publication City Press and co-authored an article on the subject. On learning of this, the Sunday Times suspended Munsamy with a view to disciplining her.

She subsequently resigned from the Sunday Times. IPI notes that on 7 October the secretary to the Commission John Bacon said that witnesses summoned before the body may not refuse to testify or refuse to answer any question. He did say that witnesses might ask not to be identified or give testify in camera. In reaction to receiving the subpoena, Munusamy has said she would refuse to testify on the basis of her duty of confidentiality to the source. She is currently taking legal advice.

With the above in mind, IPI believes that the Commission has erred in its judgement in issuing the subpoena against Munusamy. Rather than forcing the journalist to appear before the Commission, it should have invited the journalist to appear leaving it to her own judgement as to whether she did so or not.

By refusing to follow this path, the Commission now finds itself in the somewhat unenviable position of appearing to use coercive methods to try to compel a journalist to breach her ethical duties to a confidential source. The Commission should recognise that this duty is absolutely fundamental to the work of journalists the world over and it is one that enables journalists to carry out their essential role of scrutinising government practices.

In issuing the subpoena and by refusing to acknowledge the higher duties of the media, the Commission is placing itself on the side of those who reject press freedom and the benefits that naturally flow from it in every society Regarding the question of justification for Munusamy‚s possible refusal to appear, IPI supports the comments made by the Media Institute for Southern Africa (MISA), the Freedom of Expression Institute (FXI) and the South African National Editor‚s Forum (SANEF) that declarations such as "The Declaration of Rights and Obligations of Journalists" (the "Munich Chapter"), and the South African Constitution all provide protection for journalists with regard to confidential sources.

Moreover, IPI wishes to strongly point out to the Commission that its decision flies in the face of the judgements reached by international bodies on the subject of journalists being forced to testify. On 11 December 2002, an appeals panel from the United Nations War Crimes Tribunal in the Hague overturned a decision that former Washington Post journalist Jonathan Randal could be compelled to appear before the Tribunal.

In reaching its decision, the panel agreed with Randal and his lawyers that the personal safety and independence of journalists could be jeopardised if he was forced to testify. The panel also stated that journalists could only be compelled if the information desired was "direct and important" to the case and could not be obtained from other sources. While the decision of the panel is not binding on the Commission, IPI would argue that it is at least persuasive.

Therefore, IPI asks the Commission to rescind the subpoena against Munusamy. By doing so you will be upholding the right of journalists to practice their profession free of restraints and in accordance with Article 19 of the United Nations Universal Declaration of Human Rights.

We thank you for your attention.

Yours sincerely,
Johann P. Fritz
Director


PRESS STATEMENT ISSUED TO ALL MEDIA ON 8 OCTOBER, 2003

Subpoena violates media freedom and must be withdrawn

Three media organisations express their strong opposition to the serving of a subpoena on former Sunday Times political correspondent Ranjeni Munusamy in an attempt to force her to give evidence before the Hefer Commission and testify on the spy allegations against National Director of Public Prosecutions Bulelani Ngcuka.

The three organisations are the South African National Editors‚ Forum, the Freedom of Expression Institute and the SA Chapter of the Media Institute of Southern Africa, all of which are totally opposed to journalists being questioned about their confidential sources of information.

Munusamy was the author of a story published in City Press which claimed that Ngcuka had been investigated as a spy for the apartheid government by the African National Congress during its war against that government. The Hefer Commission has been set up by President Thabo Mbeki to investigate whether Ngcuka was a spy. Munusamy has stated that she will not give evidence before the commission.

The three organisations strongly support Munusamy in her refusal not only because testimony by her would place the identities of her confidential sources at risk, but because it endangers a cardinal constitutional principle protecting freedom of the media. As public interest lobby groups, the three organisations strongly believe that freedom of expression, media freedom and access to information are critical in ensuring the free flow of information and ideas and in encouraging public participation, transparency and accountability of government and other institutions of society. The organisations point out that compulsion on a journalist to testify, provide information, hand over material or reveal his or her confidential sources of information violates the constitutional right to freedom of expression and freedom of the media, coupled with the freedom to receive or impart information and ideas. It has the attendant consequence of infringing the public's constitutional right to be informed.

By compelling journalists to testify, confidential sources of information inevitably dry up as people lose trust in the media's promises of confidentiality and come to fear that providing information could result in their being identified or being brought before a court of law. This, too, could have a "chilling effect'' on journalists who become afraid to pursue controversial stories. Whereas it is acknowledged that the purpose of the commission issuing subpoenas is to ensure that there is a proper administration of justice, the organisations hasten to point out that such purpose does not warrant the violation of a right as fundamental as media freedom. The commission has not demonstrated that there are no other means of obtaining the required information without infringing the freedom of the press.

The organisations have noted the provision in section 6 of the Commissions Act that witnesses may only refuse to answer questions if they have "sufficient cause'' and argue that the constitutional right to media freedom provides such "sufficient cause'' for a journalists to refuse to testify.

It is contended that journalistic freedom as contemplated in the constitution will not only be harmed but could be destroyed if journalists are forced to testify about their knowledge and disclose confidential sources' identities.

It is also noted that the commission is prepared to hear evidence in camera and without disclosure of the identity of a witness, but this is not regarded as providing a sufficient safeguard to protect the identity of the sources or to prevent a consequent public perception that journalists are informants for the authorities. In addition, the organisations point out that the sensitive issues of protecting sources and of journalists being forced to give evidence is the subject of protracted negotiations with the Department of Justice and the SA Law Commissioners which will be compromised if the Hefer Commission persists with its subpoena. The organisations call on the Hefer Commission to withdraw the subpoena and for the state, judicial and quasi-judicial bodies to respect and uphold media freedom as a cornerstone of democracy. The attention of the commission is drawn to the Constitutional Court view of media freedom expressed by Judge Kate O'Regan (in the case of Fred Khumalo & Others v Bantu Holomisa) where she referred to the undeniable important role of the media in a democracy. "They bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture...The manner in which the media carry out their constitutional mandate will have a significant impact on the development of our democratic society''.

The three organisations are to seek a meeting with Judge Hefer to express their concerns.

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