These are confusing times for freedom of expression. A national conversation is emerging, but it is as incoherent as it is at times immature. Both the government and the media are searching for a bit more nuance in their positions.
Last weekend’s Cape Town Book Fair was a resounding celebration of both literary and intellectual freedom and endeavour. In the main hall of the International Convention Centre, a growing number of local publishers jostled for space and attention with the big global brands, while upstairs people queued to get into oversubscribed seminars.
Encouragingly, Wilbur Smith’s session was barely full, yet those conducted by local political writers and public intellectuals overflowed.
Yet it was also the week in which the National Assembly passed the Film and Publications Amendment Bill, at the end of an aptly robust debate, soured only by two things. First, Minister of Home Affairs Nosiviwe Mapisa-Nqakula was absent. This is inexcusable: a minister should always be there at the second reading of his or her Bill.
Cabinet colleague Lindiwe Sisulu was left holding the bag and had to read out an unconvincing speech, which tried to allay fears that, in seeking to protect children, prepublication review is a disproportionate, and therefore unconstitutional, limitation on freedom of expression.
A late amendment sought to re- assure the media by exempting members of the Newspaper Association of South Africa from the prepublication requirement. In response, the South African National Editors’ Forum pointed out that at least 500 other media organisations that are not members of the association would not be covered; prepublication review would be as unworkable for them as it would be open to abuse.
The other unsavoury aspect of the debate was when, in the middle of a deluge of points of order, Patrick Chauke, the chairperson of the home affairs committee, which shepherded the Bill to the house, noted that DA front bencher Sandy Kalyan was herself wearing a miniskirt.
Whether this indiscretion shed more light on Chauke’s ill-judged attempt at humour, an underlying sexism, or on the confused thinking that lies behind the Bill might be more than merely a moot point.
Meanwhile, up north, the SABC’s conduct in relation to the biographical film on President Thabo Mbeki slid from bad to worse. The public broadcaster now looks absurd and amateurish, rather than just censorious, as it did a year ago when it pulled the documentary on the legally ludicrous basis that it was ‘incurably defamatory”.
The SABC’s senior management is clearly not up to the job; the public broadcaster has become an embarrassment, even in the eyes of the president, I am reliably told, whose reputation it seems so anxious to safeguard.
The relationship between the media and government has degenerated sufficiently — thanks to the Film and Publications Bill on the one hand and increasing government irritation with the shallowness of press reporting on the other — to drag the two sides back to Sun City for a discussion.
Legislating to protect minors is, of course, laudable. As Sisulu said on behalf of her absent colleague, only the most extreme libertarian could argue against making the use of children in (and their exposure to) pornography punishable.
While I do not believe this government is wilfully establishing a law that might be used later to censor the media, there are other factors at work, including political posturing by people within the ministry and Parliament, and the inevitable churning of the bureaucracy.
This is not to elevate the media above others. I do not believe in the sanctity of the so-called ‘fourth estate”. When the quality of reporting from the mainstream media is so poor — such as with the current public sector strike — what is there to elevate?
Old-style liberal defenders of freedom of expression such as Raymond Louw — whose role in highlighting threats to constitutional rights should be saluted — also must develop a more nuanced understanding of the inherent limitations on the idea of a so-called ‘free press”. Free from what and whom? Certainly not from the requirement to maximise profit and shareholder value. They must apply equally stringent attention to the asset-stripping corporate owners of the largest media groups for their own inadequacies and conservative political agendas.
In turn, the ANC in government should stop behaving so defensively. This means learning to let go. In the same vein that stronger oversight of the executive from Parliament would be in its longer-term interests, government should support a competent and independent media, not least at the SABC, that is able to put journalistic rigour above all else.