as set out in Notice No 1426 of 2002 by the Department of Communications
Representations on certain features of the Bill by the South African Chapter of the Media Institute of Southern Africa (MISA-SA).
MISA-SA is an institution composed of members who seek to promote, among other objects, the principles of freedom of the media and free expression as well as the widest access and dissemination of information in accordance with the Constitution. It is part of a wider regional institution in the Southern African Development Community which has national chapters in most of the countries forming the SAC. All the chapters of MISA subscribe to the principles of the Windhoek Declaration. This declaration is so well known that I believe there is no need for me to describe its contents which are mainly directed at adherence to the principles of freedom of expression, media freedom and diversity of media.
Broadly, our main concerns over the Bill relate to its intrusions into the freedom and independence of the SABC's news gathering and dissemination services, the usurpation of the functions of the SABC's editors by the Board of the SABC and, in turn, the usurpation of the functions of the Board -- especially in regard to its duty to uphold the freedom and independence of SABC news services -- by the Minister of Communication.
We are also concerned about the increasing powers that the Bill gives the Minister.
In dealing with our representations we respectfully ask this committee to bear in mind two essential elements in the Bill of Rights which place the rest of the Constitution in context.
We refer to Chapter 2, clause 7 (2) which states: The state must respect, protect, promote and fulfil the Rights in the Bill of Rights; and
Chapter 2, Clause 8 (1) which states: The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.
This means that all other rights in the Bill of Rights are not permissions but substantive rights which everyone including the state and the legislature have a duty not only to uphold and protect but also to promote. Indeed, these clauses enjoin everyone diligently and with every power at their command to pursue and promote the rights contained in the Constitution. Indeed, the Constitution insists that we -- all of us -- must go the extra mile in preserving the rights in the Constitution.
Thus any watering down or diminution of those rights is an offence against the Constitution.
We have dealt with our concerns sequentially in the order in which they occur in the Bill and thus the order of their appearance in this document should not be regarded as an
order of priority.
Section 2:
Amendment to Section 1 (r) which refers to `national interest' as meaning the founding provisions of the Republic as provided in Chapter 1 on the Constitution of 1996.
We suggest that this addition on its own is not adequate and that the reference should encompass the whole of the Constitution or, at least, the Bill of Rights outlined in Chapter
2 which protects the freedoms of citizens.
It is our contention that the use of the term `national interest' in relation to news gathering and dissemination is too restrictive and can have a narrow political connotation. Journalists work in the public interest which is much wider. Politicians of a ruling party may decide that there should be secrecy over an issue ``in the national interest'' -- where the meaning of ``national interest'' is defined by the politicians. Journalists work in the ``public interest'', a sounder, much wider base which might override ``national interest''. Chapter 2 of the Constitution protects the ``public interest''.
Section 6
Item (2): We understand that this item which was originally to be deleted has been restored.
If this is so we need not pursue the argument further. Our view is that the removal of this item in the SABC Charter would constitute an offence against the Constitutional clauses 7 (2) and 8 (1) that have been referred to earlier. It is contended that the removal of the clause could be interpreted as a removal of the protection of freedom of expression and independence for journalists. Its arbitrary removal and restoration suggests a cavalier attitude to media freedom and the rights enshrined in the Constitution.
Section 6
Items (3), (4) and (5) Together these three items constitute a diminution of the freedom and independence of the SABC editors and journalists. They also open the door to the government exercising direct control over the SABC news services and turning it into a government propagandist medium.
The statement (3) that ``The Board must ensure accurate, accountable and fair reporting by the corporation''. It appears to relate to reporting by journalists, news gathering and
dissemination, responsibility for which, according to this amendment, will become that of the Board.
The Board has the responsibility of appointing editors who are instructed to ensure that the News Departments of the SABC present news services which comply with the highest standards of professional journalistic practice. It is for the editors to ensure accuracy and fair reporting and journalists are accountable to them for their work. Editors are the arbiter of what is accurate and fair and not boards of directors.
In newspapers, unlike most other business enterprises, there is a barrier between the board of directors, management and commercial aspects of the newspaper and the journalists. Some call it a Chinese wall but its purpose is to ensure that the editorial services of the publication are dealt with by an editor and his or her staff who must not be interfered with by the other sections of the newspaper in the day to day conduct of the paper. It is designed to enable journalists to work independently and without interference and to enable them to present the news accurately and fairly without fear or favour
and in the public interest.
This principle applies to public broadcasters. It was introduced into the SABC's Charter for news services shortly after 1994 after the new board consulted with other reputable
broadcasters and journalistic institutions and the Freedom of Expression Institute in South Africa.
The other two items, (4) and (5), spell out even more worrying provisions; (4) says the Board must prepare and submit to the Minister for approval within three months after the date of conversion, policies governing the exercise of accurate, fair and accountable reporting and (5) states that the Board and individual journalists of the Corporation shall be subject to the policies of the Corporation dealing with the accurate, fair and responsible journalism and thus exercise care and skill and act in the best interests of the Corporation.
We submit that these clauses mean that journalists will no longer act as independent investigators, gatherers and disseminators of news in the public interest -- the standard
which every self- respecting newspaper demands of its staff. Now they will have to abide by the policies the Board will lay down as applying to definitions of accurate, fair and
``responsible'' reporting.
It should be born in mind that ``lack of responsible'' reporting is the phrase beloved by anyone caught out by the embarrassing disclosures of journalists.
SABC journalists will no longer act in the ``public interest'' -- the driving principle of all independent journalists -- but ``in the best interests of the Corporation''. If the ``best interests of the Corporation'' is to be the rule applying to journalists they will never be able to report anything to the detriment of the SABC.
Worse, still, the public perception of this instruction is that the news is biased in favour of the corporation and cannot be trusted.
The clause which draws all these policy strands together under government control -- that of the Minister -- is (4) where it states that the Board must submit to the Minister the ``policies governing the exercise of accurate, fair and accountable reporting''.
Thus, ultimately, it will be the Minister who decides the parameters of accurate and fair reporting and thus the parameters of the contents of news services. And the term
``accountable'' in this context means being called to account by the government.
This, too, reinforces what we have stated above about public perceptions about the integrity, standards and professionalism of SABC news broadcasts. The public will place an interpretation on these instructions which will result in it dismissing SABC news broadcasts as those controlled by its ``master's voice'' -- the Minister. Indeed, a reversion to the practices of the apartheid era.
Support for the contention that the Bill will enable power at the SABC to be taken over by the Minister is contained in Sections 7, 11, 12 and 15.
Section 7 refers to the Minister determining the memorandum and articles of association of the new corporation which is to be established to enable the SABC to operate two services, one commercial and one as a public broadcaster.
Given its nature as a public broadcaster which influences the manner in which citizens gain information and their thought processes, the SABC is in a special category where special rules apply to ensure its independence from government and political influences.
Our submission is that in these circumstances the drawing up of the memorandum and articles of association of the corporation should not be the responsibility of one person,
especially a person in government, but should be subject to an independent review, say, by this committee at least. The importance of such an independent review mechanism cannot be overstated because the specific powers and duties of each of the management boards -- for the public service and the commercial service -- are set out in the memorandum and articles of association of the Corporation (Section 15 relating to 13A (4)).
Sections 11 (c) (i) and 12 (c) (i) reinforces Section 6 (4) that the Minister has oversight powers of the news editorial policies of the two separate broadcasting entities. It is noted
this section also gives the Minister power over the programme policies of the two entities. Apart from our objections to oversight of news policies, oversight of programme policy is
highly undesirable because programming can relate to discussion of current affairs, politics and contentious issues of the day. Like news, this should be independent of ministerial or political control or oversight.
Section 15 further entrenches ministerial power over the direction of SABC services through the operations of the Management Boards of the two services.
The section amends Section 13A (2) (a) and (b) and provides for the Minister appointing the members of these two boards from the current Board of the SABC. It provides for each committee having three senior SABC officials and six non-executive directors nominated by the Minister from the current Board.
This again gives too much power to the Minister. The nominations could be decided among the board members themselves or by the Portfolio Committee.
The two regional TV services that are proposed could be an answer to the language problem though we believe insufficient research has been done into the question of how the languages could be serviced. The Bill is not helpful in baldly mentioning the two services but failing to give details of how they will be controlled and operated.
We now append a few general comments:
CONSULTATION
We note that the list of institutions consulted on the Bill in its preparation are almost exclusively government departments. Apart from ICASA and the SABC which have a degree of autonomy, there appears to have been no effort made to consult with civil society and NGOs or other institutions in the private sector that deal with broadcasting policy, broadcasting operations or broadcasting production and certainly none in the highly sensitive area of independent journalism.
IMPLICATIONS FOR CONCERNED ORGANISATIONS
We note that the SABC has tendered serious objections to substantive elements in the Bill. Several of its senior news executives have voiced their serious concerns about
interference with news gathering policy and how this will affect the staff and the standing of the operation in the community.
ICASA which has an onerous job maintaining a Chinese wall between itself and the government over the licensing of broadcasters and telecommunications operations, is clearly deeply concerned at the manner in which the Minister is proposing to derogate from its functions and responsibilities. Indeed, the temperate language used by ICASA in raising its objections belies the serious inroads the Bill will make into independent and impartial licensing of broadcasters.
RESPONDING TO THE MINISTER'S COMPLAINTS
The Minister has on several occasions stated that the object of the Bill is to provide scope for multi-language broadcasts to meet the demands of people who have to gain their information through ``foreign'' languages. We see no difficulty with the attainment of this laudable objective -- people should have access to information and programming through their own languages -- but most of the aspects of the Bill do not address this problem but other matters which should be outside the purview of the Minister and government.
The Minister has also complained about the damage that can be done by inaccurate reporting to the value of the rand and by extension to the country's economy or to the possibility of such reporting leading to the outbreak of war.
We are surprised that the Minister, who when chairman of the SABC never appeared aware of these dangers, should present such shallow, if not spurious, grounds as an excuse for taking control of the SABC news services. There has never been one
instance of inaccurate reporting by the SABC on any of its TV or radio programmes that has led to any sudden catastrophe involving the country's currency or even the remotest
possibility of the outbreak of even the smallest war.
If inaccuracies do appear there are several mechanisms to deal with them such as the Broadcasting Complaints Commission, ICASA, in addition to the country's laws and, of course, the ever-present public to whom all publications, including broadcasters, are finally accountable.
South Africa's only war in recent years was embarked upon by the government.
EFFECTS ON THE REGION
South Africa may be disliked by some of its neighbouring states for whatever reason, but that has not prevented any of them from adopting the laws and practices that are introduced here. Indeed, the fears of many people in the region is that if SA were to embark on repressive legislation, other countries in the region would follow.
Thus SA has a regional leadership role to play whereby it sets the example with its ``peoples' rights'' Constitution. By reducing the independence of the SABC and placing news services under the oversight role of government, we are placing before the region an example that many countries will be only too eager to adopt.
The consequences are serious. Africa has a lamentable record of freedom for the individual and freedom of expression and the media. Of the continent's 59 countries, only five -- I repeat five -- have been adjudged by Freedom House in its annual global review of freedom of the media as being free. And not one of that five are classified in the top grade of a country with a free media. Not even South Africa. The top classification is
divided into two -- countries with laws potentially harmful to the conduct of a free media and countries without such laws. South Africa would get into the top grade except that it still has laws with the potential to restrict the freedom of the media.
We have the only truly public broadcaster in Africa. If this Bill is passed we will lose that status and we could slip back further in the ratings of freedom on this continent.
We at MISA-SA support the presentation made by the Freedom of Expression Institute to this committee yesterday and emphasise that many of the recommendations that were made have been made on several occasions in the last decade, in particular, the requirement that the SABC Board hold regular public report back meetings.
We have commented on the lack of extra-government consultation by the Department of Communications in drawing up this Bill. It is our submission that the language problem should have been tackled not by the Department but by the Board which should have been mandated to draw up recommendations.
Incidentally, I wish to point out a minor technicality that occurs in Section 11 (4) (ii) where reference is made to the ``principle of equality and equitable treatment of all South African official languages as enshrined in the Constitution''. There cannot be equal treatment of all languages; the more appropriate terminology should be ``equitable treatment''.
Finally, we ask in view of all the deficiencies that the Bill be withdrawn and referred to a consultative committee comprising, among others, civil society stakeholders to formulate a more appropriate Bill.
Presented by Raymond Louw
Member of the National Governing Council of the South African Chapter of the Media Institute of Southern Africa.