I don’t know if any of you have seen a book called Portrait of a People by Eli Weinberg — with the photos of the ’56 Treason Trialists — the famous portrait of Chief Albert Luthuli. Eli was the photographer of the movement of the 1950s.
Halfway through the book, you’ll see a picture of a police raid at the Congress of the People where the Freedom Charter was adopted. Up on the platform was the photographer from Die Vaderland, taking pictures for the newspaper and for the police. And if you look down you’ll see that at the press table there are four to five journalists, and a very, very, serious, very solemn and very young man standing there with a great sense of the importance of the moment. That journalist was me.
I was sent by the newspaper, The Guardian, which had campaigned for the Freedom Charter, the only newspaper in the country to do so. I was very proud to be there as a journalist.
That was 1955. I’m still very serious. I look at that picture with amusement, that young Albie. It’s kind of lovely to see my generation: the impossible dream we had of South Africa as a democracy.
The Guardian was banned and replaced by the People’s World. The People’s World was also banned and replaced by The New Age. And after The New Age was banned The Advanced took its place. And, lastly, Spark was also banned and closed down. Each time a new editor had to be found and occasionally I was made an editor.
So I could almost, after 50 years, be an honorary member of the South African National Editors’ Forum!
We all agree that there is a tension between the right to privacy and the right to freedom of expression. But balance always has to be involved. And South Africans are not good at balancing. We like to take sides.
Had this approach of winner takes all been taken earlier, we wouldn’t have a country today. We had to look into one another’s eyes and find areas of common interest.
What are other media areas where this balance is required? National security. We have a case in the Billy Masetlha litigation right now about certain documents: should they or should they not be revealed?
There is a tension between journalists having information about a crime and revealing, or not revealing, their sources.
Dignity versus reputation. Can we just publish what we want about anybody? Or does there have to be some public interest?
Child pornography — here a whole range of issues comes up. Then there’s the right to a fair trial. You can’t allow trial by the media, deciding in advance who is guilty or innocent. And the press has to value the judicial role, because we are your bulwark, your defence, through the Constitution, on principles such as freedom of speech. And we need the press to communicate our work.
It’s not the old authoritarian system any more. Now fundamental rights are protected by the Constitution. The real question is: how does one deal with contradictions? The one way would be denial. South Africans are really good at denial: what doesn’t exist is not there. The other way is by suppression. You suppress the tension by giving predominance to one side. Sometimes it would be the freedom of the press that is dominant, at other times it’s that of the national interest. We need to embrace contradictions and work through them. This involves balancing.
Freedom of the press is more than just about selling newspapers; it’s part of the vitality of this country. Voices have to be heard. Amartya Sen famously said that in democratic countries you don’t get famine. In totalitarian countries you get famine when there are shortages because the elite hoard the food and there’s nobody to criticise them.
Just before I became a judge I met Issy Foigel from the European Court of Human Rights. He said that on that court there is an interesting division between judges from Northern Europe and Southern Europe. Judges from the south think their job is to distinguish between right and wrong, while northern judges say their main task is to balance right and right.
In open democratic societies diverse people come to court with legitimate but competing claims. It’s not the crooks and the good guys — it’s people with interests they’re defending and rights they’re trying to advance. And these collide and we have to find the balance between them. I find increasingly that the problem we’re encountering is trying to balance right and right.
This is an edited excerpt from Constitutional Court Justice Albie Sachs’s remarks at the Nat Nakasa Award dinner in Cape Town on June 2
Declaration of Table Mountain calls for press freedom in Africa
Below we publish excerpts from the Declaration of Table Mountain.
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The World Association of Newspapers and the World Editors Forum, meeting at the 60th World Newspaper Congress and 14th World Editors Forum Conference in Cape Town, South Africa, from June 3 to 6 2007;
Note that in country after country, the African press is crippled by a panoply of repressive measures, from the jailing and persecution of journalists to the widespread scourge of “insult laws” and criminal defamation which are used, ruthlessly, by governments to prevent critical appraisal of their performance and to deprive the public from information about their misdemeanours;
State their conviction that Africa urgently needs a strong, free and independent press to act as a watchdog over public institutions;
Consider that press freedom remains a key to the establishment of good governance and durable economic, political, social and cultural development, prosperity and peace in Africa, and to the fight against corruption, famine, poverty, violent conflict, disease, and lack of education ….
Declare that:
African states must recognise the indivisibility of press freedom and their responsibility to respect their commitments to African and international protocols upholding the freedom, independence and safety of the press, and
To further that aim by, as a matter of urgency, abolishing “insult” and criminal defamation laws which in the five months of this year have caused the harassment, arrest and/or imprisonment of 103 editors, reporters, broadcasters and online journalists in 26 African countries (as outlined in the annexure to this declaration);
Call on African governments as a matter of urgency to review and abolish all other laws that restrict press freedom;
Call on African governments that have jailed journalists for their professional activities to free them immediately and to allow the return to their countries of journalists who have been forced into exile;
Condemn all forms of repression of African media that allows for banning of newspapers and the use of other devices such as levying import duties on newsprint and printing materials and withholding advertising;
Call on African states to promote the highest standards of press freedom in furtherance of the principles proclaimed in Article 19 of the Universal Declaration of Human Rights and other protocols and to provide constitutional guarantees of freedom of the press;
Call on the African Union immediately to include in the criteria for “good governance” in the African Peer Review Mechanism the vital requirement that a country promotes free and independent media; and
Call on international institutions to promote progress in press freedom in Africa in the next decade, through such steps as assisting newspapers in the areas of legal defence, skills development and access to capital and equipment ….
Cape Town, June 3 2007
The M&G extends its thanks to students in the Stellenbosch University journalism programme (http://academic.sun.ac.za/journalism/) for their technical assistance in obtaining these remarks.