The ANC seems to have backed away from the idea of a statutory Media Appeals Tribunal, but the idea is not completely off the table, writes Glenda Daniels in The Weekender.
Glenda Daniels writes in The Weekender:
Contrary to what most people think, the media appeals tribunal was not just a “mere idea mooted at Polokwaneâ€ÂÂ. A resolution was adopted at the African National Congress (ANC) policy conference in 2007 to investigate the possibility of such a tribunal. This can only be rescinded at the next ANC policy conference.
What would a statutory tribunal mean for our democracy? In a Sunday column recently, Mac Maharaj asked for journalists to examine their own conduct and to “share their reflections so that we can make informed judgmentsâ€ÂÂ.
The ANC would like to have more control of the media; hence it would like to “supplement†the already existing self-regulatory mechanisms in place via a statutory tribunal. This would be constituted by members of Parliament. The majority of MPs are ANC members.
Our neighbour Botswana is trying to enforce a statutory tribunal for its press, through the Media Practitioners Act which was passed last December.
Through this act, President Ian Khama is planning to enforce the registration of all journalists. The fine for not complying would be 5000 pula. The Media Institute of Southern Africa (Misa) is challenging this in court.
Is it that remote that this could happen in SA?
Since Polokwane, the ANC has become silent about the media tribunal save for a bit of “backtracking†by spokeswoman Jessie Duarte in April this year, when she said that while the proposal was still on the table, views were shifting and it needed to be taken back to a policy conference.
In response to a question on whether the formation of a media tribunal was still on the table, presidential spokesman Vincent Magwenya said: “Any measure that seeks to improve media accountability (or the accountability of any social institution) will be supported as long as it does not take away the fundamentals of media freedom. The idea of a media appeals tribunal was just that  an idea.
In discussions with journalists, the frequent refrain is: “A tribunal won’t happen because the ANC doesn’t know how to implement such a thing,†and, “In any case it would be unconstitutional and the South African National Editors’ Forum (Sanef) would take it up.â€ÂÂ
The Mail & Guardian ombudsman, a media tribunals researcher and lecturer at Wits University journalism department, Franz Kruger, says the tribunal “only exists at Polokwane†but warns the backtracking by Duarte is just a statement. “There is no national resolution rescinding this.â€ÂÂ
Kruger’s research shows that tribunals have been on the upsurge since the 1990s in Africa and in Eastern Europe.
It is ironic that Botswana, seen as a beacon of light in many respects, standing out in the southern African community for condemning human rights abuses in Zimbabwe and Sudan, is trying to enforce media tribunals.
Kruger observes that the ANC has for a “long time been unhappy about the media†and wants to curb its “excessesâ€ÂÂ.
Mistakes made by the media are used as the excuse for more press regulation, he says.
“Of course, it would be challenged in the Constitutional Court, but this court itself is about to change in character and composition. I would say it’s not impossible that a media appeals tribunal could be instituted; it’s not inconceivable that a formulation could be found. They would couch it in terms of development and transformation.â€ÂÂ
Instituting a statutory tribunal means that ultimately the executive would have final say, if there is a dispute between the media and the public.
The present system, according to Press Ombudsman Joe Thloloe, consists of two parts: the Press Council, which has six representatives of the press and six public representatives, and the adjudicating mechanism consisting of the Press Ombudsman and the Press Appeals Panel.
The council has four aims: to promote and preserve the right to freedom of expression; to promote and develop excellence in journalistic practice and ethics; to promote the concept of press regulation and set up the office of the Press Ombudsman and the press appeals panel; and to accept a press code enforced by an independent, nonstatutory, mediating and adjudicating structure.
“When a person lodges a complaint against a newspaper or magazine, the Press Ombudsman first attempts to mediate and find an amicable solution between the two parties. If this fails, we move to the stage where we have a formal hearing, where I sit with two members of the Press Appeals Panel  a press representative and a public representative  and hear the evidence and arguments from both sides before making a ruling on the matter.
“Either party can appeal against our ruling and the appeal is heard by the chairman of the appeals panel and two other members of the panel. Their decision is final,†Thloloe says.
Sanef, the Freedom of Expression Institute, Misa and journalists are satisfied with how the system works.
The Polokwane resolution stated that the ANC “is faced with a major ideological offensive, largely driven by the opposition and fractions in the mainstream media, whose key objective is the promotion of market fundamentalism, control of the media and the images it creates of a new democratic dispensation in order to retain old apartheid economic and social relationsâ€ÂÂ.
According to the ANC the media should “contribute towards the building of a new society and be accountable for its actionsâ€ÂÂ.
What are the implications of statutory regulation of the media? It would remove self-regulation, which ensures accountability without being state-controlled, and replace it with a media that is ultimately answerable to Parliament, often just a rubber stamp for executive decisions.
Journalists would self-censor, which most certainly would result in lowered standards in the profession. The public would also lose faith in traditional media and stop being consumers of news as they know it.
Citizen journalism would grow as it did in Zimbabwe during that country’s previous election, when the only “news†was “official news†or Zanu (PF) news.
Citizens then used technology, for example text messages, to pass on news about what was really happening on the ground. Citizen journalism could deepen democracy, but this should probably go hand in glove with traditional journalism, for greater reliability.
Zimbabwe has seen the harshest crackdown on its press over the past decade. Kenya’s media opposed the government in instituting statutes to regulate it but failed. Angola and Mozambique have tribunals. Namibia is considering it and Botswana is now trying to impose one.
Of course, everyone knows what happens in a country where there are more journalists in jail than in the newsroom. China has a department through which all stories have to pass before reaching the public. Don’t write anything that criticises the government, you will be thrown in jail.
And in SA? Watch this space as the new administration emerges, in different angles, with no real pattern as yet. The answer is ever-growing vigilance on the part of civil society, independent media bodies, journalists and consumers of news.
• Daniels is a 2009 Open Society Foundation media fellow. This article first appeared in The Weekender on 29 August 2009.
