Guy Berger
Guy Berger

Drop the media tribunal if you want debate about the press

Thirty years ago this month, six security police arrested a journalism lecturer at Rhodes University. They held him incommunicado and interrogated him at ungodly hours. Seven months later followed a two-year jail sentence for membership and furthering the aims of the then-banned ANC.

In the sweep of South Africa’s repressive past, mine is a pretty minor story. But it resonates today because it’s suddenly no longer so historically remote.

Instead, this month saw similar heavy-handed treatment of a journalist. At least, unlike my own case, Mzilikazi wa Afrika of the Sunday Times was released from custody within days.

But the irony is that this abuse of a journalist happened under an ANC government and without a peep against it from the ANC people currently pushing for press control.

“Let the debate begin”, wrote President Jacob Zuma in the ANC newsletter last week, adding that there should be no holy cows.

But is it really a “debate” when media criticism mutates into threats of jailing journalists, and when the threats then create a climate in which a journalist is summarily arrested?

And when, on the Asikhulume programme recently, I criticised the suitability of Parliament as a body to pursue the proposed Media Appeals Tribunal, ANC spokesperson Jackson Mthembu responded derogatorily as if I had indeed violated a holy cow.

Like any South African, JZ has every right to speak out in favour of the ANC’s proposed tribunal. But perhaps it would have been more prudent for him to keep above the fray:

  • First, although he argues that the tribunal is not an individual issue, it is clear that he himself has a strong individual interest in controlling publicity about him.
  • Second, this is the person who as state president will have to decide whether legislation about a tribunal is unconstitutional and should accordingly be sent back to Parliament. But now the incumbent has nailed his colours to the mast.
  • Third, having the party leader state his position, it becomes very hard for ANC members to oppose this — thereby curtailing debate within the organisation.

But the tribunal issue oughtn’t to have been put forward as a debate in the first place.

We have a democracy, so why should anyone want to debate, rather than reject outright, a plan to expand coercive state power into the realm of the press?

If the ANC really wishes to debate media accountability, or media ownership, or media diversity, or media transformation, no problem.

Just take the statutory regulation threat off the table, and the discussion can flow. But the ANC wants this misguided proposal as part of a package deal.

President Zuma says he is “astonished” at our response to the tribunal. Actually, it’s astonishing that he is astonished. What did he expect when such a fundamental issue as press freedom is faced with extinction?

Did he really think journalists are turkeys who would cheer the prospect of a Xmas slaughter? Or that democratic forces worldwide would celebrate this retrogressive move as post-World Cup progress?

So who then is out of touch?

The point is this: there is nothing to debate here. Statutory regulation of the press is totally taboo because it is a recipe for governmental control of content.

It’s an agenda that the ANC is setting, and it is one that we should utterly reject. What the party seems to have forgotten is that when we shifted from the old South Africa to the new, we didn’t just change ruling parties. We also put limits on the power of the state.

Today the media (which the president hastens to remind us is unelected) has its freedom explicitly protected in the Constitution.

This means precisely that an elected Parliament does NOT have the power to create a body that will decide what newspapers may publish — and thence what the public may read. There are wise limits on state power.

In a speech last week, the president claimed that the press is not in line with the Constitution. The real truth is that it’s the tribunal that’s out of kilter.

Understandably, therefore, most South Africans don’t want to debate the disembowelling of the Constitution. For most of us, while the press has its problems, its freedom is intrinsic to democracy. The institution is certainly not an enemy that needs to be put under the control of a statutory tribunal.

However, the ANC seems to be spoiling for a fight over the issue. It is clearly a convenient diversion from much more pressing issues. So let’s not give it to them. Let them proceed as they seem determined to do.

In the process, let us also not legitimise the initiative for them. The ANC is proposing that Parliament will investigate its proposals, and that there will be public hearings. However, the Travelgate scandal showed that parliamentarians themselves sometimes have issues to hide from an unfettered press.

And more to the point, the ANC is of course the majority party in Parliament. So, whatever the public consultations, the party can still drive through its policy position. What follows then is a law which the president will sign it off.

It is at this point that a tribunal law can then be taken to the Constitutional Court. So, let’s encourage the ANC to bring it on, sooner rather than later.

If the issue drags on for a couple of years, who knows what appointments could be made to the court in the interim?

For now, then, there seems little point in entering a “debate” on an offensive issue foisted upon the nation, whose parameters are established in advance, and where the protagonists have the power and, seemingly, the will to push it forward regardless.

In short, opponents of the tribunal should avoid the siren calls to engage with the ANC on this initiative. Instead, what we should do is educate the wider public about what’s at stake: a shrinking of the information environment at the behest of political interests.

We need to hammer home that whatever else may be trusted about the ANC, no one should believe the party’s claims that the tribunal keeps press freedom intact.

In the short-term, when this attack on the press is declared unconstitutional, the ANC will face two routes:

  • It can try to change the Constitution by scrapping the media freedom clause, in which case a Zanu-fication will certainly have taken place. I don’t think the ANC would go that far.
  • The party can back down with honour, wisely return to its democratic roots, and we can all get on with addressing the real problems of this society.

So let’s get to the Constitutional Court pronto. It’s the one mechanism that we have to stop the ANC from straying so far from its original ideals and to help put the movement back on track.