You can’t fix public broadcasting with flawed law-making

Imagine a forum on agriculture without the farmers present. The same logic applies to a bunch of people discussing a new law for South African Broadcasting Corporation (SABC) and community broadcasting without the central players giving their views.

That’s what happened this week when the Department of Communications (DoC) convened hearings in Midrand into its draft Public Service Broadcasting Bill.

The event picked up from written responses to the Bill which had been submitted in January. SABC itself conspicuously refrained from responding to the draft law at that original opportunity, and it was also absent from the list of those elaborating on their views. Apparently, the DoC will now meet the national broadcaster separately.

The voice of the National Community Radio Forum (NCRF) has also been missing in all this, despite the fact that the draft law deals extensively with community media.

It’s a less-than-ideal approach to develop a new law — which the DoC aims to submit to parliament mid-2011. For example, SABC will presumably give its response to the stakeholder points made so far, but its own proposals will not have been tested in this week’s public forum.

It’s acceptable that DoC, rather than all other interested parties — including the SABC and NCRF, has the prerogative to reach its own conclusions in shaping the bill. And there will probably be opportunities in parliament for further public input. But it’s way below optimum for a consultation that fails to deliver the SABC and NCRF into the process.

Yet, even more problematic is that the DoC has skipped the stage of clear policy formulation by going straight from a Discussion Paper to a draft law. The result is that there is a sore lack of guidance and explanation in the Bill.

Green Paper and White Paper
Many voices at this week’s hearings strongly criticised the absence of a formal Green Paper and White Paper process to produce a detailed policy that in turn could properly inform law-making. Simply, the current Bill is “premature” — to cite the label used by the civil society coalition SOS: Supporting Public Broadcasting.

What’s also troubling is that the policy gap also means there is no clear basis on which the DoC will take on board, or discard, any suggestions made in the hearings.

Already, the National Association of Broadcasters and the Association of Christian Broadcasters have already complained that their comments on the original Discussion Paper were not taken into account in the writing of the draft Bill.

The effect is that implicit, and accordingly undisclosed, criteria will likely operate in regard to the way that DoC deals with the diverse views presented this week.

That creates a puzzle as to how it will evaluate the views of those groups who want the Bill to be restricted to the SABC, against others who welcome that the legislation also encompasses community broadcasting as well as Sentech. Then there are also those who urge amendments to existing Acts rather than a whole new law.

Likewise, how will DoC weigh up the views of people who support the Bill’s view that public service programming can be done by broadcasters other than SABC, in relation to point by the Independent Communications Authority of South Africa (Icasa) that the provision lacks parameters?

Further, will DoC take on board the views of civil society, independent producers and some broadcasters, plus the Democratic Alliance, who all oppose the Bill’s provisions to give more powers to the Minister? What of position of and the SOS coalition that these powers would be unconstitutional?

Amongst all the arguments for DoC assess are very different views on SABC governance:

  • The South African Screen Federation (SASFED), representing independent producers, criticises the fact that party members currently control the appointments process. Cape Town TV has called for direct representatives of social sectors (eg. business) to be the majority of the SABC board, and only three members to be appointed by parliament. But how will DoC decide on this?
  • The SA National Editors Forum (Sanef) has rejected the “development state” thinking that appears to inform the Bill, saying that this would undermine SABC’s independence. SASFED echoes these concerns. Again, a question for DoC.

The business side of SABC also has many diverse views:

  • Both PriceWaterHouse Coopers and Kagiso Media have criticised the Bill’s proposed tax levy of 1% on income to fund public broadcasting. Kagiso even urges privatisation as a part-solution to SABC’s funding problems. Multi-Choice suggested this week that, instead of the TV licence, a flat-fee should be added to the returns of everyone who qualifies to pay tax.
  • As with Avusa and Sanef, Kagiso Media has also rejected the Bill’s proposal to use the MDDA to disburse an envisaged “Public Broadcasting Services” fund. MDDA supports the Fund, while the NAB opposes it altogether, saying it would be duplication of existing funds. Cape Town TV sees the Fund’s envisaged support for SABC regional services as competing with its own business model, while SASFED argues that the SABC should not be made to rely entirely on such a Fund. Sentech has its reservations.
  • SASFED and Media Monitoring Africa doubt the Bill’s continued reliance on the principle of SABC’s commercial activities cross-subsidising public broadcasting, while Icasa has even recommended closing down SABC’s commercial division.
  • — dependent on advertising for its success – understandably welcomes the Bill’s aim of reducing SABC’s reliance on commercial income. The private broadcaster believes that parliament should simply allocate the necessary subsidy for SABC to do this.

If the DoC wants to systematically extract the best value from all these suggestions, it needs a proper method to do so. That in turn should mean taking steps that deliver all the stakeholders into the process and which generates a clear policy that will help set out criteria. There should be a law about making draft law.

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

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