The controversial Broadcasting Amendment Bill has not been signed into law by the President. State law advisors are checking its constitutionality. The “Save our SABC: Reclaiming our Public Broadcaster” Coalition believes that once the particular issues have been checked, and resolved, the Bill must urgently be signed into law.
Why do we say this? Firstly, the original Broadcasting Act, that this Bill seeks to amend, has major gaps in terms of the dismissal of board members. The problem is that board members, no matter what they have done - or failed to do – cannot be dismissed. The only mechanism that exists is for board members themselves to recommend the dismissal of one of their own. There is no role for Parliament. The Broadcasting Amendment Bill seeks to address this issue by creating a role for Parliament and putting clear criteria in place for the dismissal of individual board members.
What is controversial however is the dismissal of the board as a whole. Certain Coalition members have argued that in principle board members as a collective should never be dismissed because of the potential impact of this on the independence of the SABC. This point certainly has merit.
However, after much discussion, the Coalition agreed that in certain extreme circumstances it may be necessary to fire the entire Board. COSATU and the Freedom of Expression Institute have argued for this in terms of the operations of the present Board. They have pointed to the ongoing crises of governance at the SABC, the seemingly intractable battles between management and the Board and the suspensions and re-suspensions of the Group CEO, Dali Mpofu.
They have also pointed to the important issue of the never resolved “black listing” controversy that goes back to 2006 when it was alleged that the SABC News Department was purposefully excluding “anti-government” commentators. The Sisulu Commission of Enquiry was set up to investigate this. However, its recommendations were not released in full to the public and the sanitised report’s recommendations have been left to gather dust. They claim that the SABC Board certainly has a case to answer to.
The other issue however is whether an investigation into the Board will in fact be free and fair. Many commentators have pointed to the fact that it may not be; that it may be politically driven. While Coalition debated this at length, after receiving legal advice it endorsed the Bill’s proposals.
There were two reasons – we saw the criteria as appropriate and believed that “due process” would have to be followed. The reasons for the removal of the Board include issues such as not fulfilling the requirements of the “SABC’s Charter” and the Board not fulfilling its “fiduciary duties”. We saw these as substantive issues. Further, although the phrase “due process” was not included within the legislation it was understood that “due process” would necessarily have to be followed as all Parliamentary processes would need to adhere to the principles of the Promotion of Administrative Justice Act. The principles of administrative justice include at the very least a thorough investigation, proper notice, fair hearings, and an absence of bias.
Although the Coalition has defended the Bill as a way forward to solving some of the crises at the SABC, we certainly have not seen it as a panacea. From the moment it was tabled we argued that one of its major problems was that it was too narrowly focused even to address the immediate crises at the SABC. We argued that the Bill’s scope needed to be widened to include at the very least appointment criteria and processes. After all this is where the crisis began. Unfortunately, however, these issues were not addressed.
So what is the way forward?
The Coalition is now arguing for a new comprehensive SABC Act to be passed, focusing on appointments, governance issues, funding, legal structure and so forth. The Coalition understands that the Department of Communications is in fact in the process of developing such legislation. To develop a lobbying position the Coalition is holding a workshop at the end of January 2009. The outcome should be a comprehensive civil society position paper to feed into this process.
Kate Skinner is the SOS Campaign Coordinator.