The Constitution v the media tribunal

By Loammi Wolf

The ANC’s mooted legislative initiative to create a Media Appeals Tribunal is undeniably causing a furore. That is understandable given the historic background of muzzling the media during the apartheid era.

History has shown that authoritarian regimes often come about in a creeping way. Typical indicators are the following: First, the executive tightens its grip over the free flow of information, usually employing the following tools: muzzling a free press; blurring the state goals of national security and public safety and letting national security override the public interest. Second, a too close ideologically-driven symbiosis of the executive and legislature often leads to legitimising an excess of power and curbing of fundamental rights. Finally, the role of prosecutors and the judiciary is marginalised more and more. Weak constitutional systems that tip the balance of power towards parliament or the executive can even enhance the process.

This makes clear why a parity of power between the different branches of state power as well as a vigilant but fair press is the heartbeat of any thriving democracy that cherishes constitutionalism. It is against this backdrop that one should evaluate the Protection of Information Bill that would allow the executive disproportionate scope for classifying information as secret and the envisaged MAT.

In order to determine whether there is constitutional scope for such a tribunal, one will have to consider the available information more closely to ascertain where it would fit into the constitutional separation of powers.

The idea of a MAT originated during the 52nd national conference of the ANC in 2007 in a resolution (par 126-131) taken at that occasion. The ANC’s discussion paper on the topic, which investigated the matter will only be tabled at the party’s national general council meeting in September 2010. The Presidency’s prepared response during question time in Parliament therefore stated that until then the government “does not have a position on it”. Consequently, the constitutional nature of MAT as an institution is rather vague at this stage.

All that is clear is that the envisaged statutory tribunal would have adjudicating powers, and although it would be “independent of the ANC and of the state” according to the party’s spokesperson, it would be subject to parliamentary control. Fines and prison sentences could be used to discipline journalists.
A number of issues are at stake and perhaps it is best to deal with them consecutively.

The “balancing of rights”

To start off with, a major thrust of the ruling party’s justification for a media tribunal is that other constitutional rights such as dignity should be balanced with press freedom as foreseen by section 36 of the Constitution. However, section 36 actually regulates something different. It sets out criteria for valid limitation of fundamental rights. All state action, be that the making of law, administrative action or judicial decisions, must steer clear of excesses of state power. This norm is therefore of central importance to constitutionalism and means that state action must always be in proportion to the object pursued.

This weighing up of legitimate state interests and possible restriction of fundamental rights (eg press freedom) of individuals (eg journalists) or legal persons (such as newspapers) by state organs is sometimes referred to as a “balancing of interests”. What is balanced in this concrete case, is the rights of the free press vis- á-vis restrictions state organs wish to impose on them.
Insofar the impression created by the ANC that it wants to balance press freedom with the right to dignity can be confusing (par 101 of the discussion paper). It is not different rights which are balanced in terms of section 36 but the extent to which the scope of fundamental rights may legally be restricted by state organs in their exercise of power.

It cannot be overlooked that some politicians seem to be under the impression that their private lives are part of their public functions and ought to be shielded from public scrutiny by the press. The two issues should not be conflated.

Public office bearers are in the public eye because it is an inherent part of any democratic system that the activities and lifestyles of politicians are scrutinised to ensure accountability. Press freedom, however, is obviously not without limits either. It is subject to rules of fair journalism. Malicious or defamatory reports and the misrepresentation of facts should be avoided.

President Zuma substantiated the drive for state control over the print media with arguments that they are too often unfair and that “a lot of pain has been caused by how the media has been reporting [on] certain individuals in the country” (Hansard 8.9. 2010). It is certainly a tight rope but it is also true that politicians often equate humiliation they feel personally as a result of truthful reports which expose political corruption, with unfair reporting or even defamation just because it has put them in a tight spot.

Deputy President Kgalema Motlanthe alluded to an incident where The Star and Pretoria newspapers “ran false articles” about him. It concerned an article by journalist Fiona Forde investigating who would act as first lady of the country at the time when Motlanthe was appointed as president. A lady with whom he allegedly had a liaison claimed that she was awaiting his child. His lawyers contested the truth of the allegation and took the matter to the press ombudsman, threatening to go to court. The matter was finally resolved through mediation and the newspapers agreed to publish an apology. At first blush this sounds like a success story. Yet, if one reads the journalist’s version of what really happened it reveals a story of press intimidation and a possible abuse of state power.

However, it’s not only the pain caused by reports, which upsets the government. The ANC’s spokespersons indicated that media reports on political corruption don’t go down well with the ruling party. He accused the press of being the messenger of a Democratic Alliance “onslaught on ministers” and said “the messenger must be subject to sanctions”. The underlying current of wanting to clamp down on a recalcitrant media and smothering critique by opposition parties is tangible (see also the discussion paper, paras 37-44).

The arrest of Sunday Times journalist Mzilikazi wa Africa illustrates the point. He investigated corruption in Mpumalanga and was also one of the journalists who worked on an article that alleged that police commissioner General Bheki Cele had leased new police headquarters without following normal tender procedures.

Wa Afrika was arrested by the police, who bundled him into an unmarked car, drove around the country for many hours, interrogated him in the middle of the night, procrastinated access to his lawyer and confiscated his computer — all without a valid arrest or search warrant or even informing him why he was arrested.

Much later it was disclosed that he was going to be charged with fraud and defeating the ends of justice. The “Hawks” insisted that his arrest had nothing to do with his work as a journalist, but the line of questioning focused on his “discrediting senior office bearers of the ANC in Mpumalanga”. They claimed that he forged a letter of resignation that was faxed to the Times in which Mpumalanga Premier Mabuza informed President Zuma of his resignation. When he investigated the fax, the presidency denied knowledge of the letter. He was then charged for being illegally in possession of the faxed letter.

The minister of police rationalised Wa Afrika’s arrest on the basis that he “resisted arrest”. The gist of his argument was that once a police docket was opened that suffices to arrest a person.

In court, however, the prosecutors threw the case out because there was no basis for the charges. Several fundamental rights of Wa Afrika, viz personal freedom and rights pertaining to arrest and detention, were unlawfully negated — ostensibly to intimidate him. Yet nothing happened to the relevant police officers although one would have expected their suspension from office and a prosecution for abuse of power. This is exactly what section 36 of the Constitution regulates: limiting state power to restrict or negate fundamental rights.

Self-regulation vs state control

One of the cornerstones of a democracy is press freedom and how the political watchdog role of a free press is handled. It rests upon the twin principles that the press should be free from state intervention but subject itself to high-quality self-regulation and should practise responsible journalism.

One must therefore clearly distinguish the self-regulatory system of the press ombudsman, press council and press appeals panel from the scope of public law that regulates state power. The former are institutions in the civil society domain, which are run by representatives of the press and members of the public. Although the appeals panel is presided over by a retired judge, he acts in a private capacity.

The mediation procedures dealing with complaints about press reports, which misrepresent facts or are defamatory, are based on voluntary participation. The rulings are binding because the parties concerned agreed to it. The scope of the rulings, however, is restricted to a reprimand or caution, or to direct that a correction, retraction or explanation should be published, and where appropriate, an apology as well. The mediating bodies are not allowed to mete out sentences because that is a state power of the judiciary.

In other words, mediation is an inexpensive out-of-court way to settle complaints. Another advantage of mediation procedures is that the scope of complaints covers a much broader spectrum than those which would pass the legal threshold to qualify as defamation or crimen injuria. The bulk of complaints probably fall in this category and exactly this is the strength of mediation procedures: an aggrieved person can nevertheless get satisfaction along this route to set things straight.

The ANC’s discussion paper contends that a statutory media tribunal would “legalise and strengthen the work of the press ombudsman” (par 100). This creates the impression that self-regulation measures are “illegal” although it is a perfectly legal procedure falling within the scope of the right to free association, guaranteed by section 16 of the bill of rights.

The point is rather that self-regulation systems are an inherent part of press freedom in constitutional states, which steer clear from state intervention with the exception of judicial proceedings in case of defamation or crimen injuria.

Section 192 of the Constitution even draws definite boundaries with regard to the government’s powers to control the public broadcaster. It makes clear that the public broadcaster is not the mouthpiece of the government of the day. Broadcasting must be in the public interest and “ensure fairness and a diversity of views”. The public broadcaster, like the print media, is also entitled to freedom of expression. The electronic media has its own self-regulating body, the Broadcasting Complaints Commission of South Africa that deals with complaints.

One of the main reasons why the government wants to create a statutory body to deal with complaints about the press is that the print media allegedly tends to publish retractions, corrections or apologies in a rather non-conspicuous manner. That is perceived not to be fair enough or insufficient to ameliorate the harm caused. Such unhappiness, however, could easily be remedied in that the aggrieved person insists during voluntary mediation that the apology should be published in a specific manner.

The ANC further espouses the idea that MAT should function as an appeal instance to “strengthen, complement and support the current self-regulatory institutions”. This is problematic from a constitutional perspective, because an adjudicating state organ in a public law setting cannot function like the second instance to appeal a non-state institution’s findings relating to voluntary out-of-court mediation.

Likewise, the government also cannot abolish or replace the press’s self-regulatory system with a state organ. That would amount to an unconstitutional curtailment of press freedom and freedom of association (section 16 in combination with 18 of the bill of rights) because the restriction is disproportionate to the object pursued in terms of the criteria laid down by section 36.

Moreover, if an aggrieved person is not satisfied with the mediation outcome, legal recourse is still an alternative. The ANC discussion paper incorrectly alleges that in order for a complaint to be accepted by the press ombudsman, the aggrieved party “has to agree to waive his or her constitutional right to take the issue to the courts if he or she disagrees with the self-regulatory system’s verdict” (par 95).

In terms of the procedures of the self-regulatory system it is merely required that the aggrieved person refrains from instituting legal proceedings claiming civil relief as long as the mediation proceedings are under way (par 1.5.2). The reason for this is to prevent that private law legal recourse for defamation, which run concurrently, could be used as a pressure to force a specific outcome of the mediation procedures.

A double function for the media tribunal?

The ANC asserts that such a tribunal is necessary because poor people who feel aggrieved by unfair reporting or the outcome of mediation cannot afford legal council to take their case to court and need another organ to settle their complaints. According to President Zuma, this body should not only adjudicate the poor’s complaints but “act on their behalf” (Hansard 8.9. 2010).
It seems therefore that MAT will apparently fulfil the double role of defending a respondent and adjudicating the dispute. That obviously contravenes the maxim nemo iudex in sua causa (one cannot be the judge in your own matter).

Furthermore, if such a tribunal is created it will obviously not only serve the poor. It is likely to be flooded with complaints by politicians who feel unhappy or humiliated as a result of the exposure of corruption or an abuse of power. Moreover, the ruling party will probably cast legislation creating a media tribunal in such a form that will allow them to stack the tribunal with persons favourably disposed towards them.

How such a system could be regarded as “fairer” than the current self-regulatory mediation in combination with recourse to the courts is not clear.

MAT and the constitutional separation of powers

The government has not explicitly indicated where MAT should fit into the constitutional scheme of the separation of powers. The ANC’s spokesperson stated that the envisaged media tribunal would be “independent of the ANC and of the state”. Apparently the tribunal should have adjudicating powers and be subject to parliamentary control.

The spokesperson further indicated that prison sentences, “millions for defamation” and the firing of journalists are in the pipeline “because they don’t contribute to the South Africa that we [the ANC] want”. He further stated that journalists critical of ministerial over-expenditure for private lifestyles would be sanctioned. That is seen as part of the opposition’s “onslaught on ministers”. Such perceptions are obviously not in line with the tenor of the Constitution as multiparty democracy based on accountability and transparency. It is also not clear how Parliament can create a statutory tribunal with judicial powers, which is not a state organ.

With regard to the form into which the tribunal should be cast, two options have been mooted, viz a body similar to the Complaints and Compliance Committee or a Chapter 9 institution.

The first option is mentioned by the Polokwane resolution as well as the ANC discussion document (paras 103 and 108). In terms thereof, the media tribunal should have the power to consider complaints against the print media in the same way as the Complaints and Compliance Committee of the Independent Communications Authority of South Africa. This body, however, cannot be compared to the envisaged media tribunal. The Complaints and Compliance Committee is responsible for regulating licences. That is an administrative function and does not entail the exercise of judicial power.

A second proposal is also on the table, viz that the tribunal should have the same standing as Chapter 9 institutions. These include the public protector and the South African Human Rights Commission. However, these bodies are watchdogs of the public administration and not meant to be governmental watchdogs of civil society institutions like the press. In fact, part of the Human Rights Commission’s duties is to ensure that fundamental rights like the freedom of expression are not curbed by undue state influence.

Apart from these constraints, both options are in conflict with the constitutionally prescribed separation of powers. The Constitution has conferred judicial authority upon the courts (section 165(1) of the Constitution). Section 165(2) of the Constitution guarantees the independence of the courts, whereas section 165(3) stipulates that “no person or organ of state may interfere with the functioning of the courts”.

In terms of section 55(2) in conjunction with section 239 of the Constitution, Parliament may only supervise administrative or other state organs, which do not perform judicial functions. Parliamentary control of such a media tribunal is therefore a still-born idea.
Apart from that, section 41(1)(e)-(g) of the Constitution explicitly prohibits state organs to assume powers and functions of other organs. The Cabinet is therefore barred by the Constitution to initiate legislation that would create such a tribunal with judicial powers as part of the executive branch or as a Chapter 9 institution, and likewise Parliament is barred from adopting such legislation since it would constitute an unconstitutional usurpation of judicial powers.

If the government would nevertheless go ahead to create such a tribunal as an indirect administrative organ exercising judicial power in relation to the print media, section 167(4) of the Constitution specifies that disputes about the functions of state organs can only be resolved by the Constitutional Court. The press would therefore be able to clarify the matter at the highest level.

The only option which the government has to create such a low-cost media tribunal would be as part of the judiciary. Section 166 of the Constitution leaves scope that parliament may establish other courts than those already listed by the provision by way of statute. However, such a media tribunal would not be able to hear minor complaints where the criteria for defamation or crimen injuria have not been met. This is also a highly unpractical endeavour because it would blur the distinction between private law and criminal law matters.

Conclusion

The impression one gets is that the proposals about MAT have not adequately taken the constitutional constraints with regard to this endeavour into account. Not only the practicality of such a tribunal is open to question; the constitutionality of such a tribunal within the framework of the prescribed separation of powers is highly problematic. It could also too easily be turned into a censorship instrument.

The quality of a democracy undeniably depends heavily on quality reporting of the press. The positive effect of the debate is that a greater public awareness has been created about the importance of responsible and fair reporting as well as the dangers of censorship. It would seem that the most viable option at this stage is that the self-regulatory system should be improved. More stringent penalties (like fines) have been suggested and furthermore that corrections, retractions, and apologies should be printed more prominently.

* Loammi Wolf specialises in public law and has a special interest in transitional democracy, constitutionalism and state organisation law. She obtained an LLM at the University of Virginia as well as a doctorate in constitutional law at Unisa. She also studied at the Karl Ruprecht University in Heidelberg and qualified in taxation law and chartered accountancy in Frankfurt, Germany. She runs the initiative Democracy for Peace