Much of the political campaigning for this month’s elections has been facilitated by the broadcasting system, which of course leads to a key question: do the regulations on election broadcasts promote free and fair elections, or do they simply play into the hands of the strongest parties, thereby potentially weakening the foundations of democracy?
The regulations, made under Section 78 (1) of the Independent Broadcasting Authority Act, allow for election broadcasts from the closing date of submissions of the lists of party candidates until 48 hours before polling day. The “general regulations” (section 3) cover many of the practical elements that make up election broadcasts during this period. Dealt with here are the technical standards, the delivery deadlines of the campaigns, the time-limits of each election broadcast, the distinction between a party broadcast and an advertisement, and the limitations on broadcasters around amending or editing campaigns.
The regulations also seek to indemnify the broadcaster against any claims made by third parties in respect of the content of an election broadcast. In this regard there is an obligation placed on political parties to ensure that campaigns comply with the “electoral code” (as contained in the Electoral Act), according to which the incitement of unlawful or illegal acts must be stringently avoided.
While these sections are clear enough, the “specific provisions” (section 4) provide a platform for debate. This section places an obligation on broadcasters to make four time-slots of two minutes available each day for election broadcasts (regulator Icasa can increase the allocation as required). Broadcasters must clearly identify the election broadcasts both at the introduction and at the end, the broadcasts cannot exceed two minutes, and one election broadcast cannot follow another. Also, while no party is obliged to use all its allocated time-slots, it cannot sell the slots to another party.
Flowing from this is the complicated process of allocating slots to the various parties.
Notwithstanding the fact that there are language issues and more beneficial slots – prime-time slots will obviously draw a larger audience – the regulations provide a mathematical formula to calculate the number of slots each party should get. The formula is based
Icasa is obliged to treat parties equally;
The public is entitled to hear more from, and about, political parties that are likely to have a bigger influence in elections;
The parties more likely to contribute to policy, as government or opposition, should be allocated more slots.
A further three factors are taken into account when developing the formula:
The need of all parties to be heard;
The historical record of the parties;
The number of seats the parties will contest nationally and provincially.
The regulations acknowledge that fairness requires the differential between the new parties and the established parties to be small, and therefore the equal allocation of broadcasts to parties is relatively high. But is it high enough?
In a fledgling democracy, where there is such a large gap between the ruling party and the rest of the peleton, we need to be sure that election broadcasts do not become a self-fulfilling prophecy, allowing the strongest to remain strong through their access to media and their ability to “out-market” the rest, while the small voices struggle to be heard.
Such a scenario would be to the detriment of South African democracy. It may well be that the courts and Icasa need to keep a careful eye on how the 2004 process plays out, and should step in if necessary to ensure that real freedom of electioneering is maintained.
Greg Hamburger is an attorney with Rosin Wright Rosengarten, a firm specialising in entertainment and media law based in Johannesburg.