Blade Knifes the Messenger
At a time when South Africa is rated as the most unequal society in the world, with infant and maternal mortality rates rising (instead of falling as they do in most successfully developing countries), with a worrisome unemployment rate, inadequate housing, rampant crime and a dysfunctional public education system in which only 1 in 29 black children entering the system emerge as functionally literate matriculants and far too many drop out of university, the Minister of Higher Education, Blade Nzimande, has fingered the media as the greatest threat to our democracy.This hyperbole can not be allowed to pass without comment. Justice Malala has named Dr Nzimande the "loser of the week" in his Justice Factor television programme. Rightly so. Before attempting to dissect the great threat posed by the media, it is prudent to pause to consider what is generally understood as "our democracy". Unlike the Soviet Union before its demise, South Africa enjoys a multi party democracy under the rule of law in which human dignity, the achievement of equality and the advancement of human rights and freedoms are founding values of the Constitution. "This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled." So reads section 2 of the Constitution. It means that politicians are now constrained by the parameters, obligations and values laid down by the founders of our new dispensation. No longer may our political parties rely on a transient majority to do as they please. All of their conduct and the laws they create must pass constitutional muster.
As far as freedom of expression is concerned, the state is obliged to respect, protect, promote and fulfil it, along with all of the other rights guaranteed in the Bill of Rights. The main purposes of our multi-party system of democratic government are "to ensure accountability, responsiveness and openness" in the words of section 1(d) of the Constitution. Everyone has the right to freedom of expression, which includes freedom of the press and other media and the freedom to receive or impart information and ideas. This does not extend to war propaganda, incitement of imminent violence or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
Freedom of expression, which is at the core of media freedom, is universally recognized as a human right worthy of protection. In the Universal Declaration of Human Rights, now just over 60 years old, freedom of expression features prominently. The press is referred to universally as the Fourth Estate, the other three being the Executive, Legislature and Judiciary. This tag is an acknowledgement of the power of the press, an informal power which is derived from its ability to shine light into dark places, to facilitate the exacting of accountability for wrongdoing and to generally inform the public of the use and abuse of power by the other three more formally recognized seats of power in modern society. Openness is dependent upon a well functioning press.
Investigative journalists do, sometimes unwittingly, take sides in the political battles of the day. They expose wrongdoing or suspicions of irregularities through their professional efforts. It is right and proper that they should be given the workspace in which to do so as the Fourth Estate, by giving publicity to wrongdoing, is able to limit the exercise of power and deter, if not prevent, its abuse. This is a necessary function in any society which values its freedom and dignity. All the more so, in a country in which corruption and criminality are rife.
It is also obviously true that press freedom has to be responsibly exercised. An irresponsible press corps can do irreparable harm to societies and the institutions of state on which it reports in a manner that is not reasonable and fair. The use of radio announcements to spark the Rwandan genocide is the most extreme recent African example of this. Striking a suitable balance between the privacy and dignity of those who come under the metaphorical cosh of the press and the public's right to know about the goings on in the corridors of power and among the glitterati who excite press and public attention is the fundamental task of a responsible press.
Self regulation of the press is the internationally preferred method for achieving this balance. It is invidious for those who come under the cosh to be judges in their own cause, just as it is not proper that the press should be so free as to be more or less unregulated. It is for the good of society that the press should regulate itself rather than be answerable to censorship boards and other forms of state regulation of its work. Self regulation can not be achieved by appointing toothless bodies and "talk shops" to take on the responsibility of regulating matters in such a way that the press is indeed both free and responsible. Government bodies, aimed at regulating the press, are prone to err on the side of suppression of press freedom and self serving "old boys club" press self-regulators tend to err on the side of sub-standard journalism. An independent body (one independent of both government and the press) with appropriate experience and skill is the best way to strike the balance. In many media organizations an internal ombud is the first filter for complaints made by those who feel that they have been unfairly dealt with by the reportage of their newsworthy activities. A suitably independent ombud office, properly staffed and given the power to deal effectively with the misdemeanours in respect of which there are valid complaints is the next port of call for those complainants who are not given satisfaction by the relevant internal ombud, if there is one. A properly run independent ombud office is one able to deal even-handedly with all complaints, to give an open and transparent account of its decision making and appeal processes. Importantly it must be equipped to swiftly mete out suitable punishment when punishment is due. These "punishments" could take the form of retractions, corrections, suitably prominent apologies or even fines and suspensions in more extreme cases of wrongdoing. A finding adverse to the press could become the basis for a civil action for damages in extreme cases. Swiftness is of the essence of self regulation of the press.
Ombuds of independent repute are attainable in any country in which civil society has any vibrancy and standing. The state is quick to intervene when it perceives, sometimes wrongly, that press freedom is being taken too far in that fair comment has become unfair and reasonable reportage has become unreasonable. If the press itself does not ensure that its self regulation is sufficiently healthy, functional, swift and muscular when necessary, it is exposed to the curse of government regulation - a sort of generic punishment for failing to self regulate in an objectively acceptable manner.
The proposed South African Media Appeals Tribunal is government's unwarranted intervention where there is a perception (not necessarily accurate) of irresponsibility on the part of the press. The correct way to deal with and prevent chilling interventions of this kind is for the media to self regulate properly. Giving teeth and vigour to independent, credible and skilled self regulators is in the interests of freedom of expression, without which all other freedoms are imperilled. It is the tribunal which is a threat to our democracy, not the press. Killing the messenger won't do.
Paul Hoffman SC
8 August 2010
