"Differentiate between media freedom and commercial agenda"

The South African Constitution lays a foundation for a transformational trajectory aimed at correcting the imbalances of the past. Accordingly, transformation is an imperative critical to the sustainability of every sector, be it mining, education, media and broadcasting, sport, etc. There should thus be no "holy" cows. We have seen the fruits brought about by the transformational agenda in the broadcasting industry since 1994.

We now have an independent regulatory mechanism for broadcasting protected in the Constitution Act of 1996, and an industry structure of broadcasting characterized by - a policy maker, regulator and operators as well as a three tier broadcasting system comprising of public, private/commercial and community broadcasting services. We have a Code of Conduct for Broadcasting Services Regulation prescribed by ICASA, the regulator and adopted by a self-regulating body, BCCSA.

The BCCSA is recognised by ICASA in terms of the Electronic Communications Act. As a result of ongoing commitment to transformation, there is now a diversity of voices, views and opinions expressed in broadcasting; giving real meaning to media freedom. Almost all South African languages are reflected in radio and television. There are broadcasting services in almost every district municipality, ownership and control of broadcasting is in numerous and diverse hands, reflective of the South African society.

Sadly, the same can however not be said regarding print media in our country. Even so, the legislative framework that protects, promotes and guarantees media freedom is protected by our Constitution Act of 1996, with many laws that gives meaning and effect to it like the ICASA Act, MDDA Act, Electronic Communications Act, Access to Information Act, Promotion of Administrative Justice Act, etc.. Further, South Africa is part of the community of nations, which through the United Nations (UN), at its General Assembly in 1993, in line with Article 19 of the Universal Declaration of Human Rights resolved to protect and promote media freedom. This followed the 26th session of the UNESCO General Conference in 1991, which adopted the Windhoek Declaration, a statement of principles calling for a free, independent and pluralistic media throughout the world. The Declaration affirms that a free press is essential to the existence of democracy and a fundamental human goal.

The ANC at its 51st and 52nd Congresses (in Stellenbosch, 2002 and Polokwane, 2007 respectively) reaffirmed and committed itself to the principles of media freedom, to defend and protect media freedom. We should always remember that media freedom is for all not just for media practitioners. We must thus support and create an enabling environment for media development and diversity, strive to ensure that every citizen has access to a range of diverse media, available in languages of their choice, and ensure that rural communities have access to all media including television services. Most importantly we must ensure accurate, factual, free and fair journalism and that our media is transformed to reflect South Africa in every respect.

It is against this background that we must participate in the debate dating back to the ANC National Policy Conference held in Midrand, Ghallager Estate in 2007. A recommendation for the consideration of establishing a Media Appeals Tribunal (MAT), emanated from this meeting and was adopted in the 52nd Congress of the ANC held in Polokwane, December 2007. Following this conference, from 2008 to 2009, South Africa started debating this resolution through many academic fora, civil society, the media, etc. The debate on this issue was in most cases healthy and quite robust.

The ANC leadership took centre stage in clarifying the thinking behind this proposal. It is true that elections in 2009 shifted the focus from this debate. This, however did not suggest the 52nd Congress Resolution on the MAT was laid to rest, as some analysts indicate. On the contrary, internal processes of the ANC have continued fleshing the concept leading to the preparation of a discussion paper which will be discussed at its National General Council to be held in Durban, in September 2010. Therefore, the suggestion by some analysts that recent media reports on Minister's expenses, the "bribery" of a journalist, etc. are the basis for the revival of this debate, are untrue.

However, when the ANC Secretary General, Gwede Mantashe and the Spokesperson, Jackson Mthembu recently referred to current examples of questionable media judgment, they were not advocating for the revival of the debate on the Media Appeals Tribunal but rather highlighting potential examples of questionable journalism and perhaps the promotion of commercial imperatives at the expense of media freedom.

It is important to emphatically note that the principle of media freedom enshrined in our Constitution and international best practice, does not promote irresponsible reporting, gutter and sensational journalism but rather fairness and factual reporting. To support this point one does not have to go much further than, the very Press Council Code of Conduct (Code of Ethics for Journalists) which promotes responsible journalism, fairness, accurate and factual reporting.

Thus one can only conclude that the rush to publish information without establishing all sides or facts of a story is not driven by a commitment to media freedom but rather a blatantly commercial agenda. It is thus not correct and fair to then, when irresponsible reporting and gutter journalism are challenged, to say that media freedom is under threat.

A press statement issued recently by the Freedom of Expression Institute (FXI) noted that there is a genuine concern from both sides of the argument for a Media Appeals Tribunal. Some analysts have also echoed this sentiment. I personally agree with the above statement and propose that as South Africans we engage on this proposal, constructively interrogate its objectives, debate implementation modalities and together find a solution that will serve public interest. Meaningful engagement in this case shall be inclusive of ordinary citizens, women, youth, rural communities, the working class and the poor. Let all citizens participate in the decision-making and enjoy the fruits of media freedom.

Let us revisit the ANC 52nd Congress resolution, which states:

"The ANC's commitment to media freedom is well known and entrenched. This principle is reflected in the Constitution Act of 1996. The ANC's commitment to freedom of expression in society, including the media, is located within the context of the Constitution of the Republic. These rights need to be weighed against other constitutional rights, such as the right to human dignity and privacy. ......

With particular reference to the print media, the ANC notes that the current form of self regulation as expressed in the form of the Press Ombudsman/ Press Council is not adequate to sufficiently protect the rights of the individual citizens, community and society as a whole....

Press freedom is an important human right enshrined in our constitutional dispensation, which must be protected and promoted. It is important to note that rights go hand in hand with responsibility hence the need for a balanced, independent mechanism to adjudicate complaints between the media and society......

The ANC must promote the school of thought which articulates media freedom within the context of the South African Constitution, in terms of which the notion that the right to freedom of expression should not be elevated above other equally important rights such as the right to privacy and more important rights and values such as human dignity......

The Conference adopts the recommendation of the Policy conference that the establishment of a MAT be investigated. It accordingly endorses that such investigation be directed at examining the principle of a MAT and the associated modalities for implementation. The Conference notes that the creation of a MAT would strengthen, complement and support the current self-regulatory institutions (Press Ombudsman/Press Council) in the public interest. This discourse on the need for a 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 our constitution (Constitution Act of 1996) and an effort to guarantee the equal enjoyment of human rights by all citizens.

It particularly relates to the balancing of human rights in line with section 36 of the Constitution of the Republic. This especially relates to the need to balance the right to freedom of expression, freedom of the media, with the right to equality, to privacy and human dignity for all. The investigation should consider the desirability that such a MAT be a statutory institution, established through an open, public and transparent process, and be made accountable to Parliament....."

It is very clear from the above factual reflection of the resolution, that the objectives of this proposal are to:

1. Strengthen, complement and support the current self-regulatory mechanism.

2. Promote media freedom for all.

3. Discourage irresponsible and misleading reporting, gutter and sensational journalism.

4. Put public interest before commercial interests.

5. Promote the right to equality, to privacy and to human dignity for all.

6. Provide tough action in case of malicious, defamatory and misleading irresponsible reporting.

Nowhere in the proposal is there a threat to media freedom, a suggestion for a pre-publication censorship or any other unconstitutional action. The proposed Media Appeals Tribunal clearly will not be state-controlled and will not be a pre-publication censorship mechanism, instead it is proposed as an institution to oversee complaints lodged against those who may violate the Press Council Code of Conduct for citizens who may not be satisfied will a ruling of the Press Ombudsman and Press Council. Further, to this, there is clearly no requirement for any amendment of the Constitution Act of 1996, as a result of the establishment of the Media Appeals Tribunal. I am sure both sides of the argument fundamentally have the interest of the public at heart. Let us therefore all focus on effective solutions regarding this matter.

An argument that suggest that an Independent Body acting without fear, favor or prejudice, as suggested through the ANC resolution, will institute actions against media players that factually, correctly and fairly report on the wrong doings of the Government, in the public interest, is unfounded. Perhaps, before dismissing this argument, it could be that, it is premised from "real experience" from its sponsors, regarding some practices of the self-regulatory mechanism, which is wholly funded by those whom complaints have been lodged against.

If so, please share with us such experience. With respect to independent state institutions, the contrary is our experience. Where such would happen, the courts have always defended the independent organs of state. Yes, individuals may be tempted to tow the line of some political masters, this talks to the integrity of those individuals, but the institutions independence is always protected by the law and the Courts. There is a lot of jurisprudence in this regard. Therefore, such a perception is baseless, if it arises, it can be managed through our laws.

Regarding the possible way forward, South Africa should welcome the proposal and debate its modality such that the outcome serves the intended objectives. Secondly, if there are other alternative interventions that can achieve the objectives and allay the fears of some analysts then let us make those proposals.

In my discussion with some experts in the field, some suggestions have included, not enacting a new law and not establishing the Media Appeals Tribunal, instead strengthening the Press Ombudsman through reviewing the Press Council Code and ensuring that stringent sentences are imposed on print media that continues to be found guilty of irresponsible reporting and violating the Press Council Code, amend the MDDA Act, to include the intended objectives:

• Establish a Legal Defense Fund to defend ordinary citizens (not media) against irresponsible reporting by the print media,
• Establish a Board Committee responsible for hearing complaints against the print media and then decide on financially supporting the case against the referred media, initially through the Press Ombudsman's process and then through a Court process where necessary.
• Provide in the MDDA Act for a prescribed contribution by the media to the Agency.

Another view was that, the law should only provide for the appointment of the Press Ombudsman and Press Council through an open, transparent, participatory Parliamentary process and leave its operations to continue as they are currently.

The above compromise suggestions could be of help to the discourse. It ensures the citizens' ability to exercise their rights is strengthened through legal support, strengthening of the Press Ombudsman, avoidance of the deployment of additional resources by the public purse to establish new institutions and provides certainty in respect of the fear of threat to media freedom. Submissions by those who support this proposal and any other alternative proposals should be forwarded to the investigative process when that process is undertaken. I am sure the ANC will provide that information once it is concluded and we can all engage with its proposal and make alternative proposals where necessary.

In conclusion, let us not use the media freedom argument to stifle genuine public discussion and to promote commercial interests, irresponsible reporting, gutter and sensational journalism, masqueraded as serving public interest. Lets us truly serve and protect the public interest and accept with the greatest humility, the responsibilities that the noble principle of media freedom entrusts to all of us. The media provide the public with all sides of the proposal in order to empower all participants in this discourse.

>> Lumko Mtimde, The author is an ANC and SACP member, CEO of the MDDA but he writes this in his personal capacity. This article first appeared in ANC Today, the weekly online newsletter of the African National Congress.

Click here to sign up to receive our free daily headline email newsletter