The ANC’s Polokwane conference resolved to investigate ”the establishment of a Media Appeals Tribunal”. It is gratifying that what is being suggested, at this stage anyway, is an ”investigation”. We can only hope that the inquiry will demonstrate that the statutory tribunal envisaged has been tried elsewhere in Africa and found wanting.
Consider the Zambia Media Council Bill, introduced and hastily withdrawn by the state in 1997. The government, reeling from a barrage of what it saw as negative media coverage of the 1996 general elections, decided to set up a statutory media council to regulate the media. The law would have required compulsory registration of journalists, apart from giving the council powers to reprimand, suspend or withdraw their accreditation. Failure to comply could result in prison terms and fines. Needless to say, the proposed legislation was vehemently opposed by press freedom activists and the media houses. Under pressure, the government withdrew the Bill.
And what was the argument for the state’s proposal? That the media had become so ”irresponsible” that they needed to be sorted out through an Act of Parliament. Little mention was made about how such state intervention could, in practice, enable such media to be editorially independent and accountable to the public good. It seemed the ruling political elite had decided what ”irresponsibility” and ”responsibility”, as applied to media reporting, meant. They conveniently forgot the words of British scholar John Keane that ”the greatest danger to liberty today comes from … efficient expert administrators exclusively concerned with what they regard as the public good”.
The ANC resolution calls for ”the balancing of human rights” in line with the Constitution. But doesn’t South Africa have what is largely perceived as an independent judiciary to determine such legal questions, taking into account a permutation of probabilities?
The ANC resolution further states that the investigation should ”consider remedial measures which will safeguard and promote the human rights of all South Africans”. This seems to suggest that the South African judicial system is so inadequately geared to protect citizens against the intrusions of an allegedly prurient press that it needs the ANC to redeem it.
Fast-forward to Zimbabwe: the enactment in 2001 of the Access to Information and Protection of Privacy Act made the practice of unfettered journalism a risky affair. The law requires journalists to register with the government-appointed Media and Information Commission. The primary reason for the Act? The ”irresponsibility” of the self-regulated Zimbabwean media. The consequences of that legislative decision are too horrendous to enumerate here.
What would be some of the arguments to counter the ANC’s proposal? Firstly, the political morality of the decision to set up such a tribunal, though given party-political legitimacy at Polokwane, is predicated on narrow definitions of what constitutes responsible reporting. The word ”responsibility” is defined within the capricious confines of very important persons, almost invariably all of them politicians of the ruling ANC. It is doubtful if such a proposal is motivated by the apparent altruistic ”effort to guarantee the equal enjoyment of human rights by all citizens”. There are just too many interested parties involved.
Secondly, human rights jurisprudence generally privileges freedom of expression over the right to privacy, especially when public officials are concerned. The European Court of Human Rights has held, on several occasions, that public officials, by virtue of their office, have sacrificed their privacy on the altar of public scrutiny. South Africa’s juridical architecture has so borrowed from a variety of European jurisdictions that it implicitly recognises the values of liberty and equality underpinning such jurisdictions. Given South Africa’s ascribed leadership role in Africa, claiming legal exceptionality now might not hit the right note with many neighbouring countries.
Thirdly, a casual look at this country’s legal landscape should alert anyone to the preponderance of defamation laws, adequate to enforce the right to privacy of ordinary people. Even the Promotion of Access to Information Act restricts information access that relates to privacy. Of course, it would be naïve to suggest that such laws always work satisfactorily. But does that represent a judicial inadequacy? It may be an administrative inadequacy that can be remedied without necessarily creating yet another institution.
Fourthly, the morality of legislation enabling such a tribunal is likely to be questionable. Such laws in other countries with majoritarian systems of government have only gone through because of the sheer weight of parliamentary strength of the ruling party. In a truly rigorous contestation of political and bureaucratic agendas, this proposal is unlikely to win the day. Although the ANC sees itself as engaged in the ”battle of ideas”, it might rely on brute force of numbers to push through its political agenda.
The ANC (and the government) should steer clear of prescribing the parameters of responsible media practice. And it can help to strengthen the offices of the Press Ombudsman, the Press Council and the Press Appeals Panel by giving them greater political legitimacy and support. There is no need for new institutions that could duplicate the work of existing bodies.
The media tribunal is likely to result in media tribulations.
Fackson Banda is SAB LTD-UNESCO Chair of Media and Democracy in the School of Journalism and Media Studies at Rhodes University