The controversial Media Appeals Tribunal (MAT) was first proposed at the 2007 Limpopo Conference of the ruling party of South Africa, the African National Congress (ANC).(2) While it is an old proposal, the re-emergence of this topic has caused much commotion both locally and internationally. President Jacob Zuma clearly voiced his opinion in the latest issue of the ANC's newsletter ANC Today, saying that "The Constitution of the Republic of South Africa, (Act 108 of 1996), has a Bill of Rights, which amongst others guarantees the freedom of the media and expression...As the ANC, we worked hard to get this clause into the Constitution and with good reason. We firmly believe that the media must be allowed to do its work freely and without fear or prejudice, within the context of the Constitution and the law. Nothing must be done by Government or any authority to undermine or erode these fundamental rights."(3)
This proposal, which is also supported by the ANC's closest political ally, the South African Communist Party (SACP), has been met with a volatile response from the media, most notably from the Chairperson of the Press Council of South Africa, Raymond Louw. Louw has said he was "appalled" by this call, and said that the "manner in which this call is being made and the indications ... that have been given of the objectives appear to be a clear violation of the Constitution in relation to the promotion of freedom of expression and media freedom."(4) Helen Zille, the leader of the official opposition Democratic Alliance (DA) has compared the proposed legislation and tribunal to methods of the Apartheid era, and asserted that: "We will use every means at our disposal to defend our country and our democracy from the ANC's assault. We will take the fight all the way to the Constitutional Court if necessary. We will never surrender our right to know." Zille added that "if passed, the Protection of Information Bill will criminalise investigative journalism," she speculates that the MAT "is a bid to cover up wrongdoing and silence criticism of the government." In her view, the ANC is succumbing to the same abuse of power that was present under apartheid.(5)
Indeed, the criticisms of the MAT are well-known. The rhetoric that the MAT is a means for the Government to avoid the exposure of corruption and mismanagement is widespread. However, the logic behind the proposal of the MAT has yet to be fully covered. When comparing the statements of the involved parties, one automatically notes the overt contradiction of opinions. While media sees the MAT as the death of democracy, the Government asserts that the MAT is aimed at strengthening democracy. It is the intention of this paper to dispel these disparities.
This paper will first give an overview of the proposed MAT and how the idea evolved. It will then investigate the differing opinions of the proponents of the MAT that substantiate its necessity. The purpose of this paper is to clearly draw out the position of the propagators of this proposal and outline the nature of the unregulated press present in South Africa that has led to this debate arising. It will become apparent that though there are valid concerns surrounding the MAT and its implication on hindering media freedom, there is an equivalent concern surrounding the unregulated power of the media. The consequences that may arise from having a media system that has no legal obligation to account for the news it reports, is detrimental not only to the Government, but to the nation as a whole.
The Media Appeals Tribunal
The proposed MAT has evolved over the years. The foundation of this tribunal is based on the basic principle that freedom of the press is not an absolute right, but must be balanced against individuals' rights to privacy and human dignity.
Standing on the shoulders of this resolution, the ANC published a discussion paper in 2010 entitled Media Transformation, Ownership and Diversity.(6) This paper re-opened the discussion that had been left unresolved in 2007. The paper acknowledges that an independent press is imperative for the consolidation of democracy and asserts that freedom of speech, access to information and a free media are entrenched in the Constitution and they ensure that the media operates in an environment free of oppression, persecution and the repressive legislation which sought to restrict and control the media during apartheid. The analysis of the media in this report is split into three categories, namely: Broadcast Media - Radio and Television (free to air and subscription), Print Media - Newspapers, Magazines and Knock-and-drop, and New Media - Online Media ( Internet) and mobile phone media. Broadcast and new media were assessed by the Media Development and Diversity Agency (MDDA) and were deemed to be satisfactorily representative and independent.
Print media, however, was the sector that came under scrutiny. The MDDA found that print media was not representative due to their exclusion and marginalisation of disadvantaged communities and the denial of persons to access to the media and the media industry.(7) The independence of the print media was also questioned as it is self-regulated body, under the Press Ombudsman, a body it established and funds. The paper goes on to report that according to the media, this mechanism is based on two pillars: a commitment to freedom of expression, including freedom of the press, and to excellence in journalistic practice and ethics. However, there is another school of thought that this self-regulation mechanism by design only serves the interest of the media as opposed to serving the interest of the broader South African society.(8) It is due to these disparities in independence and representation that the proposal of the MAT was tabled. The MAT would thus be purposed to increase and ensure media accountability.
Why we need the MAT
Proponents of this tribunal are agreed on the need to regulate the media in the areas of accountability and independence. As previously stated, the MAT seeks to hold the media accountable to the law. Aptly stated by President Zuma, "While recognising the role that the media plays in a democracy such as ours, this role must be understood within the context of strengthening our country's human rights culture and promoting the values enshrined in our Constitution. The Constitution of the Republic of South Africa is the supreme law of the land, and serves as a guide to all of us, including the media. We must all operate and function within its letter and spirit."(9)
Thus, the regulation of the media is in fact a consolidation of the law. In addition, the regulation of media to make it more representative, independent and accountable to the people is a deepening of the democratic ideals that South Africa propagates. When one assesses the treatment of a South African athlete, Caster Semenya in the media, one cannot deny the need for regulation of the media.(10) The offensive nature of the articles published about her violated her privacy and dignity, and no one could hold the media accountable for this defamation. Though the Press Ombudsman does exist to right these wrongs, the avenue available for ordinary South Africans are inadequate, expensive and inefficient.(11)
South Africa is only 16 years old and its history of racial segregation is not quite history yet. Thus it is imperative that the media, as one of the most influential bodies in the nation, reflect the policies of transformation. These policies must be implemented in order to desensitise racial prejudices. However, upon assessment it is apparent that the print media industry is dominated by a predominantly white ownership. The print media is composed of five main corporations: Naspers through its subsidiary Media24, Caxton, Avusa, Primedia and the foreign-owned Independent Newspapers.(12) The MDDA conducted a study to investigate the differing levels of transformation within the print media, using ownership as a marker. The indicator called HDI denotes companies whose shares are owned by Historically Disadvantaged Individuals (HDI's). Thus the study assessed each major print house, with reference to ownership and categorised it in four sections: HDI, foreign-owned, owned by a listed company and white-owned.
The results show that Media24 and Caxton, the leading distributors, are predominately white-owned and have the least percentages of HDI ownership. While in other parts of the world this would not be alarming, in a nation with South Africa's past, this racial skew cannot be dismissed as coincidence. Furthermore, the consequences of this racial skew cannot be ignored. If the media is to inform, reflect and protect the people, it must be representative of them. At present the ownership of the media is not. The MAT would not seek to nationalise print media to make it more representative, rather it seeks to bring the media under the umbrella of a more representative body, the Parliament. This is composed of elected officials from different political parties, who were elected into office by the people the media seeks to represent.
The paradox of power
The media is composed of people who inevitably have their own interests and agendas. Thus, leaving this sector without regulation would indirectly give journalists and others involved in various sectors of the media immunity to the law.
In an interview a journalist remarked that the media are becoming just as bad as the politicians they criticise. "At the extreme point, journalists have visions of grandiosity, created by their power over reputations and their ability to perform for the public. And, of course, many suffer all these syndromes at once, sadistically playing with the reputation of politicians to enhance their own feeling of power, because they are insensitive to how much pain they are causing," says Sir Lionel Morrison, former journalists and activist. "South African media is on a mission to topple structures and people without investing enough time on investigating and ascertaining facts. We demand that everyone accounts, but we do not do the same. We are just as bad as politicians we slate."(13)
The free press is undoubtedly one key facet that differentiates a democracy from an autocracy. It is imperative that the people exercise their right to be informed, the right of expression and free speech. However, these rights must be exercised under the legal frameworks of the state. The free press must align its ‘freedom' to the constitution and ensure that all information published is not in breach of the law or the human rights of the citizens of the nation. It is on this basis that an independent MAT has been proposed in South Africa. Recognising that the self-regulatory system already present is inefficient an insufficient, the Government tabled the MAT as a proposed solution to regulate and hold accountable the free press.
The print media industry is lagging behind in transformation and representation and furthermore, its independence is questioned. The MAT is proposed to curtail the negative consequences that may arise from these features and hold the media to account through Parliament. Herbert Marshall McLuhan, a visionary educator of mass media, said, "All media work us over completely. They are so persuasive in their personal, political, economic, aesthetic, psychological, moral, ethical, and social consequences that they leave no part of us untouched, unaffected, unaltered."(14) We therefore need to utilise that power and influence to create an atmosphere where media freedoms of speech co-exist with other human rights and national priorities, and ensure compliance to the principles of responsible journalism.
The Government has asserted that this MAT will not be established without the consent and the involvement of the media. However, it has also asserted that the media cannot continue to exist without any form of a legal regulatory board. In the words of Juvenal, a Roman Poet, "Quis custodiet ipsos custodes?"(15) - "If the media has appointed itself as the guardian of the people, who will guard the guardian?"
Written by: Shingirai Maparura (1)
(1) Contact Shingirai Maparura through Consultancy Africa Intelligence's Africa Watch Unit (firstname.lastname@example.org).
(2) Thabani Khumalo, ‘Power Without Responsibility - the Media Appeals Tribunal', BizCommunity, 30 July 2010, http://www.bizcommunity.com.
(3) ‘Let the real media debate begin', ANC Today, 19 August 2010, http://www.anc.org.za.
(4) ‘Press Council warns against media tribunal', The Mail & Guardian, 2 August 2010, http://www.mg.co.za.
(5) Christopher Szabo, ‘'Media Tribunal' proposal causes furore in South Africa', Digital Journal, 4 August 2010, http://www.digitaljournal.com.
(6) NGC 2010 Discussion Document, 'Media Transformation, Ownership and Diversity', ANC website, 29 July 2010, http://www.anc.org.za.
(10) Farida Iqbal, ‘The persecution of Caster Semenya - sport and intersex people's rights', Links, 20 September 2009, http://links.org.au.
(15) E.O. Winstedt 1899, "A Bodleian MS of Juvenal", Classical Review 13: 201-205.