There is still time for the Human Rights Commission (HRC) to avoid a train smash over the “racism in the media” inquiry. It can withdraw the “notices of intention” that it has served on a host of editors, back off from the confrontational nature of the inquiry and, in co-operation with editors and other press bodies, go back to the drawing board.
As the HRC commissioners could not have failed to notice, no one is denying that there is racism in the media or, for that matter, in the broader society. Editors are willing to engage in a general discussion on this subject, provided it is not conducted in the atmosphere of finger- pointing and questioning of editorial independence that has marked the HRC inquiry to date.
If we fail to persuade them, we have to decide how to respond to the summons with which the commission is trying to drag us into the combined witness box and dock they have fashioned for us.
Our dilemma is that, on the one hand, we support and cherish the institutions of the new democratic order. They have a legitimacy that was lacking in the organs of state during the apartheid days.
But our Constitution was born of a realisation that the institutional power of the state is explosive and as such can destroy as well as build. It therefore contains “checks and balances”, including the separation of powers and, most pertinently, the right to free speech.
Also crucial to these safeguards is a close definition of the parameters of institutional powers in the recognition there is always a temptation to some to use and abuse state powers for unintended purposes.
The Constitution can be seen as having been born of the struggle against racism in South Africa. But is founded in the bedrock of common law out of which principles – many of which informed the anti-apartheid struggle – have evolved over a period of centuries.
Another principle concerns the circumstances in which a judicial, or quasi-judicial body – one purporting to be acting in the name of justice – can bring an individual before it.
Essentially two instruments became available, the subpoena and the summons.
The subpoena was to compel a witness to give testimony about specified evidence of which he or she has knowledge. The summons is to answer specified charges, based on evidence previously available, which give reasonable grounds for believing the accused is guilty of unlawful behaviour.
The evolution of that body of principle can be traced back to the Star Chamber, the court of the king’s prerogative, which flourished in England during the 16th and 17th centuries before being abolished by Parliament for reasons which were only too obvious at the time. Superior to the common law and the common-law courts, it was empowered to summons and interrogate on the basis of mere complaint and petition – to question individuals over their views as to their religious beliefs, for example, in the hope of embarrassing them, if not hurrying them off to torture and the stake.
This gave it the potential to be an instrument of terror and oppression for the monarchy, subverting the judicial purpose to the whims of transient political authority, dragging men and women before it to answer nothing more than suspicions and prejudice.
Of course human experience is universal and the abuse of powers which should be reserved to proper judicial purpose by those enjoying the temporary advantages of power is not unique to the English experience. It was there in post-war America when Senator Joe McCarthy ruined countless lives by his public denunciations of “commies” and it was to be discovered in the Moscow show trials when veterans of the communist cause were convicted on no more than what appears in retrospect to have been excessive loyalty to the revolutionary struggle.
The charge which Barney Pityana and his fellow commissioners are intent on questioning us about is racism. And we use the word “charge” deliberately, for this is no subpoena we face, to give a fact-finding inquiry the benefit of our experience. Racism was the charge levelled against us by the associations of black lawyers and black accountants in their original complaint against us. After we had rebutted their allegations in detail the commission – by failing to dismiss their case as unsubstantiated – instead gave life to the charges by inviting the complainants to re- submit to a reconvened hearing so that more smears could be dragged into the dock.
The commission followed this up by lending itself to publication of a report which could probably be described as being among the most ridiculous in the annals of public administration in South Africa. And now it serves summons on us to appear before it, under threat of imprisonment, to face questioning about accusations it refuses to particularise, on the basis of evidence we are ordered to produce, but which it refuses to detail.
The behaviour of the commissioners is truly worthy of the Star Chamber, McCarthyism and Stalinism. It is a fundamental attack on press freedom, one that is all the more disturbing because those who have launched it appear blind to the rights they are trampling on.
We are democrats. There are few other newspapers that have fought so hard against racism and the abuse of power and in the cause of freedom of expression as the Mail & Guardian.
But, perhaps even more importantly at this point, we belong to a free people and as such we stand on our right to due process.
In weighing the principles involved, we are mindful that the inquiry is in danger of being personalised. It is not “Barney Pityana’s” commission any more than those newspapers summoned constitute “the media”. Both are institutions of a society which will still stand long after we are gone. We are nothing more than temporary custodians who happened to have taken up these responsibilities at the birthing stage. It is, however, a formative stage in which principles can be established which, if they prove incorrect, can take a long time to amend and prove destructive in the interim.
WHATEVER DECISION WE TAKE, WE WILL BE MINDFUL THAT WHEN CASTING THE FOUNDATIONS OF A BUILDING IT IS EASY TO LEAVE ONE’S FOOTPRINTS IN THE CEMENT.