The government should leave the media to get on with their job
NO blows BARRED
Sipho Seepe
There is general agreement that in a democracy, especially in the context of transition, people should become agents of change. This participation lends legitimacy to both the processes of transformation and to government policies and practices.
In this context, the media act not only as mediators between government and society; they also must highlight and interrogate policies and political practices that are inconsistent with both electoral promises and principles enshrined in the Constitution.
Tension arises, however, when both the media and government try to define their roles in society.
This is not unique to South Africa. In most democracies, relations between government and the independent media have been characterised by uneasiness, mistrust and, at times, outright antagonism.
Understandably, governments advance their legitimacy to justify policy choices and to dismiss opposing perspectives. In South Africa the fact that the ruling party derives its support from the black majority while the media remain largely white-owned compounds the problem.
While the tension has not yet assumed crude forms such as banning, subtle forms of official and political intolerance abound. Emotive phrases such as “undermining the national interest”, being “anti-transformation” and “counter-revolutionary” are invoked.
Since these are mere labels, and not arguments, the tendency has been to ignore them.
However, the fact that some accusations are repeated with increasing monotony demands intellectual scrutiny.
Charge 1: The media are out to discredit President Thabo Mbeki. There is a far simpler explanation than a media conspiracy against Mbeki and the government. In 1999 Mbeki enjoyed overwhelming support from, and endorsement by, almost every major newspaper. He was portrayed as a businesslike and pragmatic politician with the necessary intellectual insight to fast-track social transformation.
This was, however, before he challenged the world’s best medical and scientific opinion regarding the cause of Aids. His stubborn and relentless pursuit of discredited views has since dogged him wherever he goes.
His government has been reeling from one crisis to another. The macroeconomic policy remains vexatious to the ruling elite’s political allies. Not only has it failed to meet its target, but also it is blamed for continuing job losses.
In what many see as a ploy to deflect political challenge from possible contenders, Mbeki gave credence to preposterous claims that senior members of the African National Congress were plotting to dethrone him. Anticipating the international embarrassment and concerned about his image abroad, he was forced to hurriedly pour water on these allegations.
Mbeki was not frog-marched into making these dubious intellectual and political pronouncements. He brought this upon himself.
Mbeki’s unfettered political control and influence in political appointments at both the national and provincial levels has arguably reduced appointees to tasks better performed by parrots or puppets. It is this puppetry that has allowed Mbeki to go unchallenged and/or dissuaded from his pseudo-intellectual escapades.
Rather than waste precious time with intermediaries, the media have correctly sought to engage the puppet master.
Given that ideas are not floating freely in space, a source of the ideas has to be referred to in the process of engagement. For instance, when Einstein pointed out the limitation of Newtonian mechanics, he was not interested in Newton the person. Newton was simply the bearer of ideas the inadequacy of which Einstein sought to expose. Equally Mbeki the person is irrelevant. It is on his ideas that commentators focus.
Charge 2: To score political points the media tend to ignore and misrepresent facts. It is true that the hustle and bustle of the newsroom and the pressure of meeting deadlines sometimes lead to errors of reporting. Such errors are corrected when pointed out, and the media grant the aggrieved the right of reply.
The charge is disingenuous since those making it have failed to place it on the doorstep of Mbeki. Mbeki displayed the most frightening form of intellectual dishonesty in his correspondence with Tony Leon on HIV/Aids where he quoted from a research report, and then cut off the inconvenient parts of the quotation that contradicted his argument. In justifying his exclusion of the former judge Willem Heath from the arms-deal investigation, Mbeki quoted selectively from Jan Lubbe (Heath’s legal adviser) and Western Cape director of public prosecutions, Frank Kahn’s legal opinion.
He not only created a false impression but also manipulated Lubbe and Kahn’s opinion to suggest that they believed there were no grounds for an inquiry.
Charge 3: The media tend to recycle the same issues. Social critics respond to current issues. If these remain unchanged, the media will continue to raise them.
A theme throughout the years of struggle was the defeat of apartheid colonialism and the emancipation of the African majority. Nobody accused the now ruling elite of recycling the same issues. Similarly, as long as the conditions that threaten democracy and the hard-won freedoms prevail, the media and those with political integrity must continue to be a thorn in the side of the ruling elite. This charge thus reflects intellectual laziness since those making it have not been prevented from shifting the debate. Their marginal role in the debate is borne out of fear of upstaging their leader.
The charge is thus an expression of intellectual frustration as they find themselves unable to engage the media and social critics.
Charge 4:The experience of apartheid has fostered a suspicion among the media that power corrupts and that all in power, including those in the democratic government, are likely to perform any number of suspicious actions and impose a wide range of wrong-headed policies.
To limit media suspicion that power tends to corrupt to the apartheid experience is historically unsustainable.
Africa is littered with revolutionary regimes that have failed their people.
It would therefore be unwise to treat the government unquestioningly, as if it is intrinsically good. Thus the call by the media and African people for popular vigilance, and even suspicion, is based on their concrete experiences of years of dashed hopes and frustrated aspirations.
The national interest is served by promoting ideals and aspirations enshrined in our Constitution. This includes the right to hold a different view from that of the government. This applies even when the government has majority support. The ruling elite should derive comfort from this support and leave the media to get on with their job.
@Malawi, democracy and third terms in Southern Africa
analysis
Tim Hughes and Greg Mills
The current debate in Malawi on whether to amend the Constitution to allow President Bakili Muluzi to stand for a third term could be a test case for the Southern African Development Community (SADC), as Muluzi prepares to take over the SADC chairmanship at the Blantyre summit next month.
During his Southern African visit in May, United States Secretary of State Colin Powell applauded the decision by Zambian President Frederick Chiluba not to stand for a third term, saying Chiluba “came to office through free and fair elections, and he will secure his democratic legacy by leaving office in keeping with his country’s Constitution”.
Chiluba’s decision came amid mounting local and regional pressure to step down, but also against the backdrop of the earlier constitutional change allowing Namibia’s President Sam Nujoma to stand for a third term.
Muluzi’s decision could, either way, shape the fortunes of the regional body. A decision not to run again could give real meaning to the framework of good governance and responsive government aimed for by the Millennium Partnership for African Recovery Programme (MAP), now termed the New Africa Initiative (NAI).
Malawi, despite its numerous developmental challenges, has earned itself a number of significant competitive advantages or “significant points of difference”. Central to these is the goodwill earned from its emergence from the shackles of 30 years of dictatorship and its negotiations through two, at times fractious, democratic elections.
There are thus sound reasons for not considering the option of holding a referendum to amend the Constitution to permit a third term in Malawi or anywhere else for that matter.
The first reason is universal. Constitutions should be altered as little and as infrequently as is absolutely necessary. They are a country’s blueprint or basic law and they have to be held sacrosanct even if their provisions do not favour the operations or secular interests of a party in power. A constitution is the backbone of any country’s polity and should serve to be as permanent and unchanging as possible. It has to serve as a stabilising and unifying force for all citizens of the country, and should not be altered to serve the interests of a political party of whatever stripe.
Amendments to a constitution should be made only when there is an overwhelming necessity for such a change from all sectors of society. The worst reason to amend a constitution is for a party or president to remain in power, even if this has the support of the popular majority of the day. These majorities shift and once a precedent has been set this invites abuse by any other future party in power. The true test of a democracy is how peacefully and constitutionally a country manages its change of political leadership. Malawi has held two successful elections; it should not be seen to fall at the next critical hurdle, even if this is at the urging of the popular majority through a referendum.
Second, the holding of such a referendum to justify or legitimise an amendment to the Constitution to permit a third term could have the converse effect of delegitimising the government, thereby creating the conditions for instability. It may also have the unintended consequence of severely weakening the government in office. The assumption made is that the ruling party lacks the confidence of winning the next election, which translates into an acceptance of failure.
Third, any such attempt to amend the Constitution would result in, at best, resistance and possible tacit support for opposition “democratic” forces, or at worst outright condemnation and isolation from the international and regional community of nations. This could have a severe impact on aid and trade on a significant scale. Such action would in itself have a deleterious effect on the ruling party and could galvanise growing domestic opposition.
Fourth, and more specifically, the eyes of the world will soon be on Malawi during its leadership of the SADC. The pressure placed on Chiluba serves as a clear example of the SADC’s resistance to “third term” proposals. Rather, Malawi has the opportunity of seizing the moral and political high ground during its tenure as SADC chairperson. This presents Malawi’s president with a golden opportunity to clearly and unequivocally state his commitment to constitutionalism and political pluralism.
If this unique opportunity is seized, Muluzi has the opportunity to intelligently link this commitment to increased aid, support and indeed goodwill. The president could solicit regional and international support for his position and set a clear example to the whole region that, if appropriately structured, can result in very tangible benefits for Malawi. The country would be in a far stronger position to demand a greater piece of the democracy dividend for its adherence to democratic principles and practices despite popular calls for a third term.
Fifth, Muluzi could also use this opportunity to portray strength and statesmanship within his own country. Again deftly used, this can serve the ruling party well in its efforts to secure its next electoral victory. There is no reason why Malawians should not admire such statesmanship and the president has the opportunity to seal a victory for his party despite having to stand down himself.
Sixth, by doing so, Muluzi could then create the time and space to begin to groom a successor who would then stand a very good chance of coming to power in the 2004 elections with legitimacy. Thus the democratic legacy left by Muluzi could be continued for the betterment of all Malawians and indeed, for southern Africans.
The question of third presidential terms, in this way, goes to the heart of the relationship between democracy and development underpinning the MAP/NAI.
Tim Hughes and Dr Greg Mills are respectively the parliamentary liaison officer and national director at the South African Institute of International Affairs
@Time to change the rules?
Equity on the Bench under the spotlight
SERJEANT AT THE BAR
A constitutional amendment holds important implications for a constitutional society. By means of its power in the legislature, the governing party seeks to alter an aspect of the compact with which society had chosen to be governed.
Some amendments are more important than others; thus a change to the Bill of Rights would rank highest among such changes.
A change to the structure of the courts, while not of the same order of significance, still requires careful deliberation. The government proposes to alter that structure by ensuring that the judges of the Constitutional Court enjoy the same conditions of tenure as are enjoyed by high court judges.
At present a judge of the Constitutional Court is appointed for a non-renewable term of 12 years, with a cut-off age of 70.
The amendment would extend the terms under which other judges serve to judges of the Constitutional Court. Thus Judge Kate O’Regan, appointed at the age of 37, would be able to remain a judge for 33 years, while Judges Arthur Chaskalson and Albie Sachs, who would reach 70 before having served 15 years on the bench, could remain judges until 15 years had been completed.
These rules all apply to high court judges and there are compelling arguments for their extension to the judges of the Constitutional Court.
The best argument depends on an understanding of a further amendment to the Constitution. It is proposed that the president of the Constitutional Court be the chief justice an eminently sensible proposal in that the Constitutional Court is the highest legal authority in the country.
The present position is a chief justice at the Supreme Court of Appeal and a president of the Constitutional Court, which has resulted in uncertainty about who the judicial leader is.
This untenable situation was a product of the compromise at Kempton Park, where the desire to have a new court untainted by apartheid determining the Constitution outweighed the argument that we already had an appellate court with great experience in appellate matters.
Thus it is argued that if the president of the Constitutional Court becomes the chief justice, it would be an unsustainable anomaly for the leader of the judiciary to enjoy but a 12-year term of office, whereas all his junior colleagues enjoy life tenure.
From this it is easy to contend that the tenure of all judges of the Constitutional Court must be brought into line with the judges of the high court. As new appointments are made, it is likely that the greater pool of women and blacks will permit the constitution of a representative court with judges who are older when they assume office and hence effectively will serve for terms not much longer than the present 12 years.
These are powerful arguments. But opponents to the amendments are not without persuasion in the arguments they can produce.
The initial idea that was agreed to at both Kempton Park and at the Constitutional Assembly was that Constitutional Court judges should serve a limited term in the manner of the German Constitutional Court.
Constitutional courts wield enormous power way beyond ordinary courts. A constitutional court is in the forefront of politics because it has the power to impose binding obligations on the elected legislature and executive and to overturn the latter’s programmes. A defined term for such a court guarantees that a body of judges possessed of particular political positions have only a limited time to impose their views before being replaced.
The prospect of judges sitting for 30 years and more on such a court raises the stakes when appointments are made and allows a government to rule from the grave, as happens in the United States, where the president can ensure that the Supreme Court can reflect his views for decades after he has left office.
A second argument relates to closure in the development of constitutional jurisprudence. Already some legal academics have noted a tendency in the Constitutional Court to be defensive when conceptual positions that it has adopted are questioned by parties in subsequent cases.
The limited term ensures that our body of constitutional law is under regular analysis by the next group of judges to hold the highest judicial office.
Viewed in this context, this amendment requires careful and rigorous debating. It represents a principled departure from the existing model for appointment of the Constitutional Court that will remain separate from all other courts, in that it will deal only with constitutional matters.
Hopefully a debate where there are good arguments on both sides will shed more light than heat.
Storm brews over new Bills, page 37
Have those women ever known what it is like to make love to someone who excites them?
@Land occupations are ‘inevitable’
Ngwako Modjadji
A new movement launched this week to campaign for the speeding up of land reform in South Africa is threatening to adopt Zimbabwe-style land grabs if its demands are not met.
The National Landless People’s Movement was launched in Johannesburg and claims to represent homeless people across South Africa.
The movement says it supports “the gallant actions of Zimbabwean President Robert Mugabe” to return land to black Zimbabweans.
Movement representative Lucas Mufumadi says land occupations are “inevitable” in South Africa because the government is “arrogant” and the pace of land reform is too slow. He says landless people tried to engage the government to speed up land reform, but were unsuccessful.
A representative of the movement’s interim leadership, Patrick Mojapelo, says when the African National Congress-led government came into power it promised to give back the land that was taken from blacks. “We voted for the ANC because we thought we would get our fore- fathers’ land,” Mojapelo says.
Mojapelo made it clear that if the movement’s demands for land are not met within a “reasonable time” it “will have no option but to adopt Zimbabwe-style land invasions”.
Mojapelo says a meeting is planned with Mugabe next month to discuss the land issue in South Africa. Mojapelo said it intended asking for advice on how to get “what was forcibly taken from our forefathers”.
The launch of the new organisation comes shortly after the land grabs in Bredell and Hammanskraal north of Pretoria, where political organisations sold land to the homeless. Squatters in Bredell were evicted following a high court ruling. No action has been taken against squatters in Hammanskraal.
National Land Committee land rights coordinator Andile Mngxitama says his organisation wholly supports the new movement and understands their anger at the way the government is handling the land issue.
@News in brief
l Former president Nelson Mandela was diagnosed with prostate cancer this week. Despite promises that his treatment was not going to affect his public engagements much, Mandela was forced to pull out of a function on Wednesday.
l Chemical warfare expert Dr Wouter Basson began testifying in his lengthy trial in the Pretoria High Court. He admitted that he set up dummy companies to launder money, but said he did this to obtain information for the apartheid government’s biological warfare programme and received no personal financial gain.
l The owner of the upmarket Johannesburg brothel The Ranch, Andrew Phillips, is bringing a Constitutional Court challenge against laws prohibiting prostitution in South Africa.
l Swaziland’s King Mswati III has repealed his controversial Decree No 2 of 2001 after a meeting between the Cabinet and members of the Swaziland National Council. The decree had tightened up government control of the media and included a schedule of offences for which no bail would be granted in the event of an arrest.
l Compassion in World Farming, a United Kingdom-based organisation that exposes cruelty to farm animals, launched its South African chapter with horrific video footage from a five-week investigation into local abattoirs. The video showed cattle, pigs, sheep and goats being starved, crammed into trucks, beaten and tortured during the slaughtering process. South Africa has at least 800 registered abattoirs.
l The commission of inquiry into the tragedy at the Ellis Park stadium heard this week that security officers at the soccer matches let people without tickets into the stadium. Some officers charged ticketless soccer fans R10 and allowed them into the stadium.