Tribunal seems like an easy ANC victory, but here's the lie

Faced with mega-messes in education and joblessness (not to mention Aids), the ANC conference this week thought it could make easy headway with regard to muzzling the press.

It’s not taxing to agree on the statutory Media Appeals Tribunal (MAT). Not like wrestling with the ongoing problems at the country’s state-owned, and biggest, media house—the SABC.

But delegates forgot Amilcar Cabral’s slogan to avoid lies and claims of easy victories.
The notion that a conference decision on the MAT will sort out the ANC’s press problem is a delusion for many reasons.

  • The politicians have under-estimated the price of making a scapegoat of the press. The many unpersuaded, but influential, constituencies wanting to protect press freedom against the MAT have had their genuine concerns disregarded. The ANC has lost their trust.

  • There’s also damage to South Africa’s international reputation by having pushed ahead with the MAT. Evidently, the conference forgot that that when you mess with the domestic press, the institution’s international counterparts mobilise in defence. It’s the ruling party that will feel the fall-out.

Now, as the conference dust settles, the ANC also has to try and make the uphill case to actually make the MAT come into being.

The first (and facile) claim that the party will struggle to substantiate is its propaganda that a MAT will ‘strengthen” the existing press council and ombudsman system. It’s clear that a statutory MAT designed to over-ride the decisions of the press council simply converts self-regulation into a charade.

Secondly, the ANC will now need to make good on the superficial logic of citing broadcast regulation as a precedent for MAT. The party’s claim has thus far built on the way that broadcasting has a constitutionally-enshrined statutory regulator (semi-appointed by parliament), to assert that the envisioned MAT is no different.

But this position can’t bypass the fact that broadcasters have an alternative to regulation via the statutory Independent Communications Authority of South Africa (Icasa). They can instead choose, as indeed 75 of them do, to come under the voluntary self-regulatory body, the Broadcasting Complaints Commission of South Africa (BCCSA).

Although Icasa approves the code of conduct of the BCCSA, it does not over-ride the decisions of that body. In terms of a 1995 agreement between the two institutions, a BCCSA matter may only be taken on review to Icasa when there has been a procedural irregularity.

Even then, if this was found to be so, the case would still be referred back for a self-regulatory decision. In 15 years, such a procedural review has never happened.

Meanwhile, by way of comparison, while the press council operates like any arbitration process with findings binding upon voluntary participants, any court can still review the outcomes in terms of whether due process was followed. Again, no one has ever had cause to pursue this route.

These facts give the lie to the ANC equating the envisaged MAT’s relation to the Press Council, with Icasa’s relationship to the BCCSA. Simply, Icasa is not an appeals body for the BCCSA and cannot overturn the substance of its rulings. The ANC will not travel very far in trying to take a different track on this matter.

A more profound point that the party will find especially hard to prove is that regulatory sauce for broadcast geese is, per se, appropriate to print ganders.

That parliament has a role in broadcasting is acceptable (within limits) as regards its selection of Icasa councillors (who in turn decide on broadcast licenses and approve the BCCSA code). It makes sense for a broadcast regulator to have a public institutional character in that it manages the use of a scarce public resource—the airwaves, which are the property of the nation.

In contrast, there is no constitutional foundation for the intrusion of political representatives where public resources are not in contention. That’s why, for newspapers and the internet, the bounds of freedom of expression are set by law as interpreted by courts, not a statutory regulatory body.

That’s also why, within these legal parameters, the matter of defining and enforcing ethical codes is something that is left for self-regulation. All this accords with the nature of democracy—which dispensation the Constitutional Court is bound to uphold.

Lastly, if it is going to be tough for the ANC to prove that a MAT won’t curb press freedom, it will be even harder to maintain the pretence that the initiative is not mainly about protecting party bigwigs.

The party’s own policy document implicitly locates the tribunal as a tool within what it sees as a wider context of a war between ANC ideas and those of others. In Grahamstown last week, a speaker from the ANC Youth League defended the MAT on the basis that ‘some journalists have an agenda of working for the opposition parties”.

Never mind the factual inaccuracy of this perception, or its crude conflation of criticism with political party opposition. The bigger point is deeming the democratic right of political allegiance to be illegitimate. Hence the interest in criminalising political choice through setting up a new lever of statutory power.

Given the vested political motives involved, very few people can honestly believe the fiction that the MAT merely aims to expand access and redress to individuals maligned by the press. These issues, as with other many criticisms of the press council, can all be dealt with within the framework of self-regulation.

In sum, as the MAT enters a post-conference period, it enters a phase when wishful thinking and fabrications have to face the test of truth. The result will be that the initiative will fail to survive the Constitutional Court.

Meanwhile, adopting the MAT is a case of the ANC fooling only itself that this is a sure-fire and short-cut intervention. In so doing, the party that suffered the most from apartheid media control, has forfeited its leadership in free expression in South Africa. That mantle, now lost, won’t be easy to win back.

#zamediafreedom, #mediatribunal
* This column is made possible by support from fesmedia Africa, the Media Project of the Friedrich-Ebert-Stiftung in Africa, www.fesmedia.org. The views expressed in it are those of the author.
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