Imagine how ANC members must feel when they look into the mirror held up by the media and see exposé after exposé of corruption: horrified. Smashing the mirror is the first instinct. Even South African Communist Party deputy general secretary Jeremy Cronin fears the revelations can “feed into a paradigm that the state is by definition corrupt” (Business Day, August 23). He is quoted as saying “subliminal racism” is often the consequence and gives rise to a perception that this is what happens when a black government takes over.
The same thing was said in 1998 when the Black Lawyers’ Association (BLA) and the Association of Black Accountants of South Africa (Abasa) laid a complaint of subliminal racism against the Mail & Guardian and the Sunday Times with the Human Rights Commission (HRC), except that they saw cause where Cronin sees consequence. They alleged that the two newspapers were stereotyping black professionals as corrupt and incompetent.
There followed throughout 1999 and into 2000 an inquiry into racism in the media, which turned into an inquisition probing the “deep recesses of the consciousness” of editors and journalists. It was ugly. It was a low point in the life of our new democracy, with the ANC’s submission on the press’s poor treatment of then-president Thabo Mbeki plumbing new depths of paranoia.
And now we are asked to contemplate an institutionalised inquisition. The ANC in Gauteng last week appeared to push for a full-blown Chapter Nine institution like the HRC operating alongside a media tribunal.
The commission noted in passing in its 2000 report that it was doubtful that the original complainants would have had a case before a court of law, but that the beauty of the HRC was that it offered an alternative, a “median mechanism to bring parties to a place where they could discuss and debate”.
It also noted that no text on racism acknowledges subliminal racism, but then protested, “… as if that is a less nefarious form of racism, somehow tolerable”.
“Subliminal, we suspect, is simply shorthand for unacknowledged — subtle forms of racism,” it wrote.
Sweeping aside the Constitution and the law, which deal with conduct, not consciousness or the content of a person’s convictions or expression, the priestly HRC chairperson, the Reverend Barney Pityana, embarked on “social analysis — rather than mere legal certainties” — and burned the editors at the metaphorical stake for the heresy of racism.
Assorted insights were offered in the report, such as: “Some crime reporting in South Africa lends itself to the charge that corruption in the public service resides with black people — Because of the prevailing power relations, the reality in South Africa is that racism is manifested as white racism. That is a fact.”
The definitive finding was that “South African media can be characterised as racist institutions”.
How did he know, since the editors had to explain to the commission how newspapers work? Well, he knows it when he sees it, as the American judge famously said about pornography. “The allegation that the HRC did not fully understand the operations of the media does not add anything to the fact of racism. What difference will it make to the racist effect of a story if one better understood what went into the story?” (The absence of intention be damned — it was subliminal anyway.)
Deified
The commission could not even get its own reportage right. Chris Whitfield, then acting editor of The Argus, was deified and became Christ Whitfield; while Die Burger‘s Ebbe Dommisse was repeatedly rechristened Eben.
I think that the experience was very difficult for the editors. They had refused to obey the subpoenas that the commission threatened to issue to secure their attendance for interrogation and agreed to participate to get the subpoenas withdrawn. I believe the hearings resulted in a period of self-censorship, which included a failure to analyse in print the manifestly absurd inquiry report.
Yet this body, the HRC, is the very Chapter Nine model some ANC and SACP figures, including Cronin, propose for the mooted media tribunal. The idea has been around since at least the Stellenbosch conference, but has been narrowing its focus to human rights: equality (racism), dignity and privacy. It is the Dali Mpofu doctrine. The former SABC group chief executive argued a constitutional basis (dignity) to justify not treating public figures with “disrespect”. He considered free speech a “foreign, frigid freedom”.
The other model — the electronic communications regulator Icasa — still features in the ANC’s discussion document, as it has done in policy documents since at least 2007.
And guess where it first surfaced? In the inquisition’s recommendations. The HRC proposed a giant regulator for all the media, missing the point that the constitutional justification for regulating broadcasting is the frequency scarcity doctrine, and that no comparable justification exists for print. The commission also recommended, as an alternative, the Icasa code of conduct and monitoring mechanism.
I have argued before (in the M&G, in early 2008) that it is that code the ANC wants to control, and preferably write. But here’s why it won’t work — and it is important to spell it out, because some of the outrage and distress about stories leaked by single, uncorroborated sources is genuinely felt and some of it is justified.
It won’t work because a statutory code for print content is in itself constitutionally offensive; and unconstitutional elements of even the broadcast code have been struck down by the courts. The Constitutional Court threw out a section of the original legislated Independent Broadcasting Authority’s code which outlawed, in strangely antiquated terms, broadcasts that might affect the good relations between population groups.
It won’t work because only a court can properly weigh the rights and their relative weights in a given case or complaint the dignity, equality or about privacy versus free speech. It cannot be done in the abstract and in advance, as the Mail & Guardian argued to the HRC in a submission that challenged its jurisdiction (as I did in Parliament, while threatening to amend the commission’s Act to ensure extramural activities like these were outlawed — a contribution for which I was flagellated by the inquisition). The commission abandoned the BLA’s press clippings and dived instead into the slimy sediment of the subliminal.
It won’t work because any code or tribunal would have to respect the precedent set by the courts. Defamation law, in which conflicts between media freedom and dignity or reputation are resolved, has been developed in detail under the Constitution. The courts have contributed to what the chief justice calls the media’s “irrevocable power”. No tribunal can take it away.
But neither can anyone take away real rights to reputation and privacy and persons justifiably aggrieved by the distortions of sensationalist fairground-mirror journalism should sue.
As for racist reporting: complainants have sections 10 and 12 of the Equality Act available. The two sections are almost certainly unconstitutional for the way they water down hate speech to nothing more than injuria and put discrimination into the eye of the beholder, but there they are: use them. Take complaints to the quick-fix equality courts. You already have media tribunals, ANC!
Dene Smuts is the Democratic Alliance shadow minister of justice and constitutional development.