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South Africa at the Rubicon - again?

South Africa's Information Bill and proposed Media Appeals Tribunal are a dangerously wrong reaction to real structural flaws in the South African economy

South Africa finds itself in a somewhat awkward historical moment, to say the least.  Many critics look at the ANC government’s proposed Protection of Information Bill as well as the Media Appeals Tribunal as a return to apartheid-era repression. The arrest of journalist Mzilikazi wa Afrika shortly after he wrote an article critical of the national police commissioner is considered by the press as fore-taste of what journalism might be like after the establishment of a media tribunal [i].

Will this result in a showdown between political power and the courts over freedom of the press? Does South Africa's constitution have sufficient legitimacy with the majority of South Africans to enable the courts to resist restriction of one of its basic rights? How does President Zuma's own experience of the courts, and the press during his power struggle with then President Mbeke flavour the current mix?

In 1985 the head of the apartheid state, PW Botha, announced in a major policy speech that South Africa was “crossing the Rubicon” intending to convey that South Africa was embarked on an irreversible course of transformation. Lack of real reform led to increasing resistance and increasingly violent repression. Although Botha apparently intended neither irony nor prophecy in the choice of metaphor it became increasingly apt as Botha increasingly centralised power in the office of the President in an increasingly autocratic state. Is South Africa crossing the Rubicon again?

Press reports tend to conflate the classification legislation, the media tribunal proposal and Wa Afrika's arrest. The Protection of Information Bill would allow practically any level of government to classify information, and punish whistleblowers who reveal classified information even if the revelation is in the public interest. The Media Appeals Tribunal (MAT) is a proposal by certain leaders in the ruling African National Congress, notably President Jacob Zuma for a special body which would hear complaints about untrue or unfounded allegations in the press. No draft legislation for the MAT has yet been made public, so it’s not possible to engage with details. The MAT would most likely be an institution with a special constitutional status, a chapter nine institution[ii], which means that it would report to parliament.

Advocates of the MAT say that it would not be a punitive body, but would hold sloppy news carriers to account for making defamatory and sensationalist accusations. The MAT would reportedly be accessible to everybody, not only politicians. The South African Communist Party’s[iii] Jeremy Cronin claims that “civil action against libel needs, of course, to be an option, but it is costly, prolonged and often inconclusive.” The argument is that self-regulation via the press ombud and the Press Council is also ineffective because corporate media market power has placed pressure on editors to succumb to commercial imperatives at the expense of truthful reporting. The MAT will solve this problem, say its advocates.

Counter-arguments of the counter-arguments leveled at the proposal are that the ombuds and the Press Council have, in fact, been very effective. The most compelling argument against the Protection of Information of Information Bill and MAT is that these proposals undermine the ‘fourth estate’.  News journalists are meant to play the role of watchdog by casting a critical eye upon the functions of the executive, the legislature and the judiciary. The watchdog role is thus meant to keep civil society appraised of developments that affect the common good so that it may make decisions that serve the public interest. In order to play this role, news media should have access to information and should be free to operate without fear or favour from the state.

Cronin's claim that legal action is costly and prolonged is correct; while the South African judiciary has a reputation for both skill and integrity, it is notorious that the administrative machinery required for the justice system to operate is in need of serious reform, reform which the government has so far failed to carry out. Why allocate resources which could be allocated to reforming the administration of justice merely to create a special fast track for defamation claims? Why should those whose sensibilities have been offended by press portrayals of them rank ahead of all the other victims of the delay and expense of legal process; people imprisoned on suspicion awaiting their exoneration at trail, those seeking vindication of their socio economic rights to housing, health care and education?

Critics of the current model of media self regulation have long argued that this model rests on the assumption that news media are best protected from state meddling in the media when they are in private hands. The oligopolistic market structure of news media in South Africa undermines this assumption. It rankles, of course, that Naspers, the largest print media group, was such a pillar of the apartheid system.The ANC’s media proposal hopes to address this problem by looking at initiatives that address the diversification of media ownership in South Africa. In itself, this is fine. But it is worrying that the MAT along with measures like the Protection of Information Bill are being proposed as part of a solution to the problem of historic control and ownership – which suggest a completely different type of policy response. Instead, they look simply like threats to news media’s role as watchdogs.

President Jacob Zuma assures citizens that the ANC will not amend the Constitution to effect the changes that it proposes. Given the level of opposition at this point if these new measures are passed into law, they will not go unchallenged. The matters would probably be taken to the Constitutional Court. A critical test of any democracy is the separation of powers. Would the judiciary have the integrity and necessary autonomy to interpret these new laws in relation to aspects of the Constitution, such as section 16 (which enshrines free speech)?  The composition of the Constitutional Court may be a decisive factor in this regard. There has however already been considerable controversy precisely over the current and future composition of the Constitutional Court. The Constitutional Court is still largely dominated by black judges many of whom were personally involved in the Struggle, and are committed to separation of powers. There are concerns that this might change if judge Hlope, currently in the Cape, were appointed Chief Justice when the current Chief Justice retires. [iv]

 

The broader context for these issues is a debate in the governing alliance itself. While only one party, the ANC, is chosen by the electorate it enjoys the support of two other organisations with which it shares a long history; the South African Communist Party  and the labour movement, notably the Congress of South of South African Trade Unions.

The ANC Youth League has suggested that it can withdraw its support for the current leadership of the ANC in its attempts to push its own candidates into positions of power in the race for positions in the next National Executive Committee (NEC) of the ANC. At the same time, trade unions (COSATU, specifically) in the tripartite alliance are locked in a battle with some leaders in the ANC. The current national public service strike is reputedly the lowest moment in relations between COSATU and the ANC in a very long time. Many trade union power brokers backed Jacob Zuma in his presidential bid with the hope that the tripartite alliance would be able to shift the ANC’s economic policy to the left, and away from the Washington Consensus policies of the Mbeki era[v].  This has not happened and tensions have been seething for a while.

The ANC Youth League’s Julius Malema has made a number of inflammatory remarks directed at the news media – in the most infamous incident, a British journalist was kicked out of a press conference and verbally abused. These sorts of incidents do not bode well for a fledgling democracy. It is from this perspective that assurances from President Jacob Zuma that South Africans have nothing to fear from the proposed draconian measures seem either naïve or disingenuous.

The measure would remain in place after his term as President. How would the ambitious Julius Malema use these measures if they are elected to high office? The current leadership of the ANCYL employs the language of the left while pursuing policies that would largely be regarded as neo-liberal.

In an ironic example of this, it has made nationalization of the mines its top priority – as opposed to strategies for addressing the problems faced by the youth, such as poor education; sexual and physical abuse; poverty and poor housing; substance abuse; and health care . The nationalization issue might make it seem as if a socialist objective is finally being placed on the agenda for discussion in the ANC and, by implication, in the country. However in a history of striking Fanonian resonance, key figures in the ANCYL have benefited a great deal from BEE (Broad-based Black Economic Empowerment), including investment deals in mining. As the value of the mines have fallen, nationalisation looks like a nice exit strategy. BEE has been criticized for not being broad-based at all – for creating a small black elite, without giving any greater access to economic opportunity than they had  under apartheid.

Therefore when the ANC makes calls for establishing a MAT as a means of dealing with the issue of commercial news media’s profit-orientation and concentration, the obvious questions to pose are, “Why not change economic policy? Why not seek to create a social democracy that places a high premium on diverse ownership of all corporate enterprises, including the mines and the media? Why not implement policies that place a high premium on social spending?”

This failure is part of a bigger failure to transform the South African economy. Broad Based Black Economic Empowerment has not been broad based, it has created a small black capitalist elite. The South African economy is too concentrated and government policy has failed to address this. South Africa adopted European style competition regulation, which prevents future concentrations but doesn't do much about existing concentrations of corporate power. The solution with respect to media is to change economic policies in favour of more diverse media ownership. One reason this hasn't happened is because the government has undermined the communications authority in order to extract revenue from the incumbent telecommunications provider. The failure to diversify broadcasting, especially community broadcasting is a side effect of revenue-maximising policies.  

One answer to these questions stems from analysis by thinkers on the left. They argue that the ANC has, for some time, been in the habit of speaking left, whilst acting right. As William Mervin Gumede suggests in his penetrating analysis Thabo Mbeki and the Battle for the Soul of the ANC, the ANC’s economic policies fit squarely within the comfort zone of the very corporations that benefited from apartheid. 

The dominance of the ANC as a political force means that we have to hope that, as argued by Professor Pierre De Vos in an interview with Open Democracy , the impetus for ameliorative changes to both the classification legislation and media tribunal proposal will come from within the ANC itself.

 

It may too soon to tell how things will end, but one thing is certain: big, corporatist capital needs the kind of social and political stability that cannot always be provided by vocal civil societies in democracies. It should be clear to clear thinking forces within the ANC alliance, however, that whatever course you are embarked on to reform the real structural problems in the SA economy, including structural problems in media ownership, you cannot afford to do it without the discipline of remaining open to fearless critics. We are crossing the Rubicon – again.

FOOTNOTES


       What journalistic accounts of Wa Afrika's arrest overlook is that heavy handed arrests based on insubstantial and often inaccurate evidence in which arrested persons are denied access to their lawyers for hours or even days are not an unusual occurrence in South Africa. What is unusual in this case is that journalists paid attention to the behavior of the police. Unfortunately  this doesn't seem to have given rise to a wider investigation of the routine practices of the South African police, nor of journalists own culpability for these practises when they criticize the police for not making arrests, as if an arrest represents some kind of real progress in an investigation.

       The question which this raises is what kind of Chapter 9 Institution the MAT would be. The first section of Chapter 9, section 181 specifically lists a number of institutions (s181(1)which “are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice” (s181(2). However the independent broadcasting authority required by section 192 of Chapter 9 is not listed in section 181, which has made considerable interference by the previous Minister of Telecommunications with the body (ICASA) intended to serve the function of an independent broadcasting authority. If the MAT were to join the broadcasting authority as a second class Chapter 9 institution that would not guarantee much meaningful independence.

       The South African Communist Party is part of the tri-partite alliance together with the ANC, and the Congress of South African Trade Unions.

            A case reviewing the decision by the Judicial Services Commission on the conduct of judge John Hlope is currently being heard by the North Gauteng High Court, the Mail & Guardian Online reports: “ Advocate Wim Trengove, acting for the NGO Freedom Under the Law (FUL), told the court that the JSC appeared to have discarded its earlier inquiries into Hlophe's conduct, and his counterclaim against the judges of the Constitutional Court, after the change in its composition. (Tolsi, 2010). Hlope's representative countered by labeeling the FUL as 'paternalistic' (The Citizen).

     For an fuller analysis on the independence of the judiciary in South Africa of see Without Fear, Favor or Prejudice: Judicial Independence and the Transformation of the Judiciary in South Africa, Penelope Andrews, Valparaiso University - Law School; La Trobe University, Melbourne, June 21, 2010.

       In Talk Left, Walk Right: South Africa's Frustrated Global Reforms ( KwaZulu-Natal Press, 2004) Patrick Bond analyses the difference between the language of the Mbeki era, and its neo-liberal policies.

About the authors

Dr Adam Haupt is a Senior Lecturer in the Centre for Film and Media Studies at the University of Cape Town. Haupt is the author of Stealing Empire: P2P, Intellectual Property and Hip-Hop Subversion (HSRC Press, 2008, free download from the HSRC Press site.) Haupt was recently Mandela Mellon Fellow at the W.E.B Du Bois Institute at Harvard University. Haupt has taught in the English Department at the University of the Western Cape in the English and Drama departments at the University of Stellenbosch, written for the Mail&Guardian, SL and Y magazines. 

Currently an SJD candidate at Duke Law School, Andrew has worked in academe, practiced as an attorney, and pioneered several non profit initiatives. He has been the founding Legal Lead of Creative Commons South Africa, a co-founder and former director of The African Commons Project, a charter member and director of Freedom to Innovate South Africa, a fellow at the Stanford Center for Internet and Society, a research associate at the LINK Center at the School of Public and Development Management, Intellectual Property Fellow at the Shuttleworth Foundation, research associate at Intellectual Property Law and Policy Research at the University of Cape Town and taught  Telecommunications Law and Electronic Intellectual Property Law at the University of Cape Town Law School.


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