The current debate on the establishment of a Media Appeals Tribunal (MAT) as a tool to offer a balance between the constitutional right of media freedom and the right of privacy, and more importantly other rights and values such as human dignity, is becoming a controversial and interesting topic to deliberate. However, there is need to understand the genesis of the current debate in order to be in a position to make an informed contribution. For instance, what does the proposed MAT seeks to achieve.

Currently, the print media is supposed to be self-regulated under the Press Ombudsman, a body it established and funds. The Press Council, the Ombudsman and the Appeals Panel are self-regulatory mechanisms set up by the print media to settle disputes between newspapers and magazines and members of the public over the editorial content of publications. According to the media, this mechanism is based on two pillars: a commitment to freedom of expression, including freedom of the press, and excellence in journalistic practice and ethics. But there is another school of thought that argues that this self-regulation mechanism only serves the interest of the media as opposed to serving the interest of the broader South African society.

At the 52nd ANC Conference held in Polokwane, having observed concerns raised by a number of citizens and complaints from people who have been victims of allegedly unfair and unsatisfactory decisions of the self-regulatory body, the African National Congress (ANC) resolved to investigate the possibility of establishing a MAT. The proposed MAT was meant to provide a platform for citizens to be fairly treated through an independent process supported by public funds and accountable to the people through parliament.

The ruling party also added that in their view the discourse on the need for MAT should be located within a proper context. It has to be understood as an initiative to strengthen the human rights culture embodied in the principles of the constitution and an effort to guarantee the equal enjoyment of human rights by all citizens. Furthermore, it would legalise and strengthen the work of the press ombudsman.

In the document titled ‘Media Transformation, Ownership and Diversity’, the ANC claims to support this initiative, because they believe that the creation of MAT would strengthen, complement and support the current self-regulatory institutions (Press Ombudsman/Press Council) in the public interest. Their contention is that currently citizen’s only recourse is the Press Ombudsman or taking matters to courts in case of grievances. As a result, complainants have to endure lengthy delays before their names can be cleared. Moreover, the court processes may not be accessible to ordinary citizens because of the attendant costs. According to the ruling party, Parliament should consider the desirability of MAT as a statutory, independent institution established through an open, public and transparent process that is accountable to parliament.

Not surprisingly, the commercial press is opposed to the idea of creating a MAT. The essence of media opposition is that the move to establish the MAT is synonymous to interfering with the freedom of expression and freedom of the media as guaranteed by the Constitution. Furthermore, this development, according to the media, undermines the existing media self-regulation mechanisms already in place, such as the Press Ombudsman, Press Council and the code of conduct for the media.

ANC secretary general, Gwede Mantashe, was quoted at the African Participatory Democracy Conference held in Johannesburg as saying, “Freedom of the press and freedom of expression must not be elevated above other rights, [such as] the right to privacy and the right to dignity. These rights must be equally protected. Therefore, giving media freedom its status of being equal to democracy is a misnomer.” Mantashe further accused journalists who have opposed and criticised the proposed media tribunal of not being familiar with the resolution that proposed it.

With this love and hate relationship that is playing out between the media and the ruling party, where does the ordinary citizen stand? How do they feel about this proposal that the ANC is introducing? And what implications will it have on them?

Nadine Gordimer, South Africa’s Nobel prize-winning writer, stated that not only journalists would be affected by the proposed medial tribunal. Creative writers would suffer a sinister attack on their freedoms, because they rely on material unearthed by journalists and their intellectual space would become fenced in. “We too are threatened by denial of freedom of the word, which is our form of expression of the lives of the people of South Africa. Journalists give us the facts, but in poetry and plays and novels there is a level of deep complexity, and that would be confined within the forces of government. Our aim is to explore life,” she said.

The regulations would therefore restrict this. She added, wryly, that it was “more than an irony” that she was fighting for freedom again. “People died in the freedom struggle, and to think that having gained freedom at such a cost, it is now indeed threatened again. All writers are threatened by censorship, and censorship is the reality lurking behind the words ‘media tribunal’. We are protesting against the institution of a media tribunal, which of course means ‘word police’.”

Mxolisi Spondo, who shared his opinion with the Daily Dispatch newspaper, noted a major challenge of the current self-regulation system. For a complaint to be accepted by the Press Ombudsman for arbitration, the aggrieved party first has to agree to waive his/her constitutional right to take the issue to court if they disagree with the verdict of the self-regulating system. Surely with this scenario, one can conclude that media self-regulation works sorely for the interests of the media. The other important shortfall in the current media self-regulation system is the lack of public participation. To what extent are the existing self-regulation mechanisms bringing on board members of the public into decision-making?

In a sense, when issues of accountability and responsibility are raised about the conduct of the media, there’s always a tendency by the print media to go on the attack and sensationalise the engagement as an attempt to control the media. Yet, we cannot celebrate democracy in our country if the media are not accountable, like any other institution in the South African public sphere. Be that as it may, the major shortcoming of the two protagonists to this debate is their respective inability to absorb criticism. On one hand, any effort aimed at transforming the media to truly reflect the needs and aspirations of the people of South Africa is trivialised by the media as a threat to make them less critical of government. The latter fairs no better and there are credible reasons to suggest their enthusiasm for reforms is not innocent either. In any case, it is widely known that they frown at every small report of corruption and other official misdeeds.

Other responses that were published in the Daily Dispatch were from Phillip Dexter and Farouk Cassim who stated that the Vienna based International Press Institute (IPI) very correctly asserts that if a MAT is appointed by Parliament, it will face an inherent conflict of interest that will skew its rulings in favour of public and party officials and essentially amount to government oversight of the media. They further pointed out that our right to freedom of expression is not mutually exclusive of the freedom of the press. “Curb the press and we, as a people, are on the way towards authoritarianism. Stop investigative journalism in its tracks and we, as a people, will have heavy imposition of taxes on us so that serial looting on a larger scale can be sustained. There is no benefit for society from the MAT. There is only a serious loss for society”.

Conclusion

The mere fact that the Press Ombudsman is from the media ranks, a former journalist, and is not an independent person who looks at the media from the layman’s perspective, poses an inherent bias towards the media with all interpretations favourable to the institution, and the other party just has to understand and accept the media way, which is grossly unfair and unjust. My recommendation would be to find a focal point in making the ombudsman system work. It should not be beyond our capacity, to design a system that will enforce a decent code for the press and where we can feel that justice is done. But it must be in the public domain, transparent and accountable to the public.

Freedom of expression is pivotal to our democracy and our constitutional democracy needs to be protected till the end. For years the media has gloried in the achievements of the ruling party, but its failures are so many and so consistent that the media have to report the facts. That is the reality; anything else would be a fabrication. The ruling party needs to take this criticism or information from the media and make introspection, like the press council has committed to do. If the Press Council of South Africa (PCSA) can undertake a complete review of its constitution in the wake of criticism, which have emerged in debate over the ANC’s planned MAT, why can’t our government do the same?

– Noxolo Kabane, an intern working in the Sustainable Settlements Programme and in the Development Facilitation Programme at Afesis-corplan. This article first appeared in the October/November 2010 edition of Transformer). It is republished here with the permission of Afesis-corplan. Picture courtesy of Right 2 Know Campaign.

References

• http://www.polity.org.za/article/press-council-to-review-its-constitutio…
• http://www.polity.org.za/article/gordimer-speaks-on-media-tribunal-2010-…
• http://www.polity.org.za/article/mantashe-defends-media-tribunal-proposa…
• http://www.dispatch.co.za/article.aspx?id=428279
• Media Transformation, Ownership and Diversity: Discussion document of the ANC