Would Media Appeals Tribunal be constitutional?

Many people have asked me whether the proposed Media Appeals Tribunal (MAP) would pass constitutional muster. We already know that the proposal for a MAP is wrongheaded, self-serving, deeply reactionary and unnecessary. But if Parliament passed a law that further limited the freedom of the printed media to publish what it deems important, and if such a law subjected the printed media to the dictates of a MAP, would this limitation on the freedom of expression be justifiable in terms of our Bill of Rights?

The short and somewhat unsatisfactory answer is that it is far too early to answer this question.

The various ANC proposals for a MAP and the various justifications for this Tribunal have been so confusing and contradictory that it is impossible to say what such a Tribunal would actually be empowered to adjudicate on, how it would be constituted and what its powers might be.

Last week Julius Malema stated that the ANC has already decided on such a Tribunal and that it wants Parliament to appoint it. He seemed to envisage that such a Tribunal would prevent the printed media from publishing certain facts which had been denied by politicians (and those lucky individuals connected to politicians) because such facts would be “mere gossip”.

These people [members of the printed media] are dangerous. They write gossip and present it as facts.

President Jacob Zuma, citing his experiences in Russia (that bastion of freedom of expression, respect for human rights and democracy), indicated last week that such a Tribunal would protect politicians from the publication of facts about their “private lives”. This is a contradiction in terms, as in an open and democratic society only the most intimate aspects of a politicians’ life can be said always to be truly private. (Of course, President Zuma has a vested interest in stopping the media from reporting on his private life, given the fact that his private life is rather adventurous and does not always conform to what he claims to believe when he speaks in public.)

He has also argued that the media tramples on peoples rights (by which I take him to mean the rights of politicians and their friends) to human dignity.

He continued by suggesting that the problem with the media was not only that it sometimes reported badly or even wrongly on events: it was ideological. Because some in the printed media do not agree with everything ANC leaders do and say, they are not in tune with the South African public. As President Zuma wrote:

The media must seriously conduct an introspection (sic) and open a constructive debate about the role of this institution in a post-apartheid South Africa. Is the media a mirror of South African society? Is it in touch with what the majority of South Africans feel and think? Does this institution actually know and understand South Africans? Why was it surprised by the explosion of national pride during the Soccer World Cup tournament? Why did South Africans decide to rise above the daily diet of negativity and defeatism that they are fed daily in the media?

So what is it to be? Will a Tribunal take over the role of the Press Ombudsman – but with enhanced powers? Will it censor journalists to stop them reporting “gossip” or other facts that are routinely denied by the well connected and the powerful? Will it be used to ensure that the media change its ideological stripes so that it becomes more compliant and in touch with what the majority of South Africans (read, members of the ANC) feel and think?

Before we have answers to these questions (on which the various ANC cadres who have commented on the need for a MAP seem to differ) it is not really possible to say whether the MAP has any chance of passing constitutional muster. A few preliminary points may be of interest though.

First, a MAP empowered to adjudicate on and punish members of the printed media will have to be independent. If it is not independent, it will be unconstitutional. A body appointed by Parliament will not be independent as it will in effect be appointed by the majority party.

If the proposed law therefore creates a MAP appointed by Parliament and that law empowers the MAP to punish journalists and newspapers, the law would be dead in the water. The limitation on press freedom would be so egregious that it could never be justifiable in an open and democratic society (although it might be well received in Russia) and would therefore not be found to be justifiable by our Constitutional Court.

Second, a MAP – even an independent one – that is empowered to address the perceived ideological impurity of some sections in the media will also be dead in the water. The very essence of media freedom hinges on the prohibition of state interference with the ideological content of what the media publishes. If the President does not like the attitude or ideological perspective of some in the media he has every right to complain and moan and shout about it. He can also make reasonable arguments about why the media is too cynical, hysterical or negative about South Africa.

But in the end – from a constitutional perspective, at least – he (or the legislature) has no power to interfere with the media to try and change the way it reports on what is happening in South Africa. If a newspaper only wants to report on corruption, crime, and how evil the ANC is, it has a constitutional right to do so (I might not buy that paper, but many others – with money to burn – probably will).

Just as members of the media can complain about the ANC but cannot tell the ANC what to think or do, so the ANC can complain about the media but cannot tell it what to write and what not to write. If the ANC wants to get the media to be more positive and less hysterical it needs to convince the media to do so through persuasion, charm and - just a thought – through good governance.

Third, if the MAP will be empowered to address the possible infringement of the dignity of individuals by the media, this might also be constitutionally problematic. At the moment courts are legally empowered to deal with this through our defamation laws. The Constitutional Court has developed our common law of defamation to bring it in line with the guarantees of media freedom and it is now far more difficult for any person – including any politician – successfully to sue the media for defamation.

If the MAT is required to apply a less onerous standard when it deals with complaints about the infringement of the human dignity of anyone, this would therefore most probably also be unconstitutional. If a court cannot impose a stricter standard to punish the media for defamation, then a MAP – who will always be less indpendent than a court – will never be constitutionally allowed to do so.

These preliminary remarks indicate that there is very little that the proposed MAP could legally and constitutionally do that the existing Press Ombudsman or the courts cannot already do. This suggests that the members of Parliament will waste lots and lots of their time – time perhaps better spent attending to the concerns of constituents about potholes, trigger happy policeman, lack of toilets and running water and dysfunctional schools. The legislature will thus either pass a law creating a MAP that will not change anything, or it will pass a law creating a MAP that would be unconstitutional and therefore would be declared invalid by our courts.

The question to ask (but maybe not of the Chief State Law Advisor) is: why bother?

Source: Constitutionally Speaking: Pierre De Vos

Times ordered to apologise

THE Times newspaper must apologise to Lakela Kaunda, the director- general in President Jacob Zuma’s office, over an article it published on staff changes there, the deputy press ombudsman said yesterday. A complaint to the ombudsman by Kaunda relating to an article on the same topic published by the Mail&Guardian was dismissed.

The complaint against The Times related to an article published on July 7 and headlined "Kaunda wins battle in the presidency – Zuma’s top aide tightens her hold as two more key officials prepare to leave", deputy ombudsman Johan Retief said in a statement. Kaunda felt the story was based on faceless sources who falsely portrayed her as a person who made life unbearable for colleagues and who manoeuvred to have them lose their jobs if they disagreed with her. She also said the newspaper had not given her an opportunity to comment. She wanted the publication to produce “hard evidence” that:

• She called all the shots and rendered other senior officials mere passengers;

• Former operations chief Jessie Duarte was referring to Kaunda when she said she was resigning because of bullies in the office;

• Kaunda was indeed a bully who forced others to leave their jobs; and

• People who challenged her authority at work were removed.

Retief found that several general statements such as “is said to have”, “is reported to be”, “allegations” and “it is widely believed”, without it being clear where the information came from, were “worrisome”, “sloppy” and eroded the credibility of the story.

On her complaint that the comment about her making life unbearable for colleagues was a “fabrication”, and that faceless sources were used, Retief found that the independence of the two unnamed sources could not be established from the story.  This meant there was doubt that proper verification was done, in breach of Article 1.4 of the Press Code. The newspaper also breached Article 1.5 of the Press Code by not asking Kaunda for comment. He dismissed the part of her complaint about the comment on her “calling all the shots” as the story did not state this as a fact. He also dismissed the part of her complaint on the comment about her “forcing other people to leave their jobs” because the report did not state she was a bully, but quoted sources. However, he found that the headline elevated an opinion to a fact, in breach of the Press Code.

The Times was ordered to publish a summary of the finding and to apologise to Kaunda.

Source: Online Dispatch

It’s 'a political game'

Mmanaledi Mataboge talks to press ombudsman Joe Thloloe about the proposed media tribunal

When and why was the press council formed and a press ombudsman appointed?
The system started in the early 1960s when the National Party government was threatening to regulate the media in the same way the ANC is doing now. To ward off that threat, the industry decided to create a media council.

It has been changing over the years, until after the 1994 elections, when it became clear that we needed to create a whole new structure. A judge from the Constitutional Court was asked to do a public inquiry as to what type of a system is adequate. A committee formed by various media organisations appointed a press ombudsman, Ed Linington.

Is there merit in the argument that because you are a former journalist you are lenient on the press?
It's not true. All you have to do is look at all the decisions we have made. They are very well thought out. All the people who accuse us of being biased have not even looked at the results of our work. From August 1 2007 to July 31 this year the number of cases that we handled from the government was 13. Sixty-two percent of these cases were decided in favour of the complainants, who are government- or ANC-related.

The ANC claims that, despite the ombudsman ruling on mistakes made by the press, the same mistakes are repeated over and over again by different newspapers.
It is true that sometimes it gets quite irritating when you have made a decision and you find the same mistake repeated in another publication. We are now considering a structured set of workshops throughout all the newsrooms related to the press code, the press council, self-regulation and ethics generally. Luckily for us, we have not had the same mistake being repeated by the same publication.

Why is it better for the ombudsman not to impose sanctions on journalists and editors?
Almost 95% of self-regulation mechanisms around the world do not impose fines, so we are in line with what the rest of the world is doing.

Why is the press ombudsman better than the proposed tribunal?
The self-regulatory mechanism maintains freedom of expression, which is fundamental to democracy. If a statutory tribunal is created, it is going to have to create a code of conduct, which will be imposed on newspapers from outside the newsroom. That is in breach of the Constitution. The system we have is that publications voluntarily adopt this code. It not imposed from outside, so there is no interference with the freedom of expression.

Why do you think the ombudsman is being criticised for being an inadequate avenue through which the public can complain?
It is much more of a political game than a real issue. When somebody complains to this office, we give them a choice right from the beginning. We say to the person: if you want to clear your name quickly, cost effectively, you can use our system. But if you want damages or any form of an award, you might want to use other tribunals, such as the courts. People have been using this system because they think it's an easier way. If they go to the courts, it is expensive and they [courts] take years before they adjudicate on the matter.

What the ANC is basically saying is that the ombudsman is toothless.
Outsiders think that when a newspaper has to publish an apology on the front page it is not punishment enough. For people inside the industry, you know that having to apologise publicly for a mistake you made erodes your credibility … hence, editors and journalists guard their credibility with their lives.

There have been suggestions before about strengthening the existing press ombudsman's office. What, in your view, needs to be done to strengthen the press ombudsman?
I don't think that it can be strengthened in any way. The suggestions that are being thrown out in the ANC alliance at this point don't make sense. Jailing journalists is absolute rubbish. Fining publications is a possibility but, then again, I don't think it will serve to improve the quality of journalism in this country.

Would the press ombudsman work better if your position was occupied by a retired judge who would not be seen to be biased?
At the pinnacle of our adjudication system is a retired judge of the Supreme Court of Appeal. If I make a decision either of the parties has a right to appeal to the press appeals panel and it is headed by a judge. You cannot be more objective than that.

It seems the ANC has made its mind up and is going to establish the media tribunal anyway.
The sad thing is that if they go ahead, it will mean the taxpayers' money, as well as money from the newspapers, will be spent on lawyers fighting the matter right up to the Constitutional Court. I believe very firmly that the Constitutional Court will not uphold the statutory tribunal for the simple reason that it goes against the principles enshrined in the Constitution.

Source: Mail & Guardian

SA's press freedom debate goes global

The furore over the Protection of Information Bill and the ANC's proposed media appeals tribunal (MAT) has gone international, according to a statement sent to the media on Thursday. The Vienna-based International Press Institute (IPI) on Wednesday sent an open letter to President Jacob Zuma urging him to address the press freedom concerns. The IPI is a global network of publishers, editors and leading journalists. In the letter, IPI interim director Alison Bethel-McKenzie expressed deep concern over "recent moves which we fear will endanger the independence and vitality of the South African media".

"We believe that plans for a government-appointed media appeals tribunal, as well as a draft Protection of Information Bill, if enacted, will endanger the South African media and thereby threaten the people of South Africa's right to information and rigorous political debate," she said.

The proposed tribunal came despite the fact that a system of self-regulation was already in place through the Press Council, in the form of a Press Ombudsman and an Appeals Panel. The current Press Council had proved its independence and had frequently ruled in favour of ANC and public officials, forcing newspapers to print embarrassing retractions and corrections -- the ultimate sanction for a business that depended on its consumers' loyalty and trust. The current Press Council was inclusive, and both journalists and public representatives sat on the adjudicating panels.

Bethel-McKenzie said any MAT would not be independent.

"If the 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, which is unacceptable," she said.

The call for a MAT coincided with consideration, by the National Assembly, of the Protection of Information Bill. The bill, which aimed to regulate the classification of secret state information, also contained a number of provisions that would damage investigative journalism in South Africa. The bill provided for a very low threshold for classifying information, but at the same time imposed draconian penalties on those who revealed that information, without providing for a public interest defence. Under the draft law, officials who abused their authority to classify information might be punished with a fine or up to three years in jail. Those who exposed such information, however, would be penalised with between five and 25 years in prison -- an unfair penalty system that encouraged secrecy and could lead to the erosion of investigative journalism.

Bethel-McKenzie said the media played a fundamental role in safeguarding democracy by holding elected officials accountable to the people. Both the bill and the proposed MAT seemed to represent a policy of protecting public officials, and punishing those who would hold them accountable.

"Mr President, as leader of the ANC and of the country, we hope that you will urge the amendment or withdrawal of the Protection of Information Bill, and will act now to end the creation of the media appeals tribunal. Thank you for your kind attention to this matter. We look forward to hearing how your government and your political party will work to ensure continued press freedom in South Africa, and would be happy to meet you, at a time of your convenience, for further discussion," Bethel-McKenzie said.

Source: Mail & Guardian

Editors and police chief prepare for meeting

Recent reports on police National Commissioner Bheki Cele and the R500-million rental deal for police headquarters may be on the agenda in a meeting between him and the SA National Editors' Forum (Sanef) on Tuesday. Sanef media freedom expert Raymond Louw said on Monday that Cele had requested the meeting and they did not know what issues he would raise. "Obviously he is going to raise some issues, he may raise issues about the reports on the move of the police headquarters."

At a media briefing last week Cele said he would be approaching Sanef about the article in the Sunday Times to discuss what he said had been a unanimous agreement on the principles of professionalism. The newspaper reported that Cele had signed a R500-million property rental deal that would see police headquarters move to the Middestad Sanlam Centre in Pretoria. According to the report, the deal was not treated as a tender, violating Treasury regulations that all government contracts worth over R500 000 go through a bidding process. However, Cele had denied this.

Louw said the editors were going to raise concerns about the conduct of the police in the arrest of Sunday Times journalist Mzilikazi wa Afrika. Wa Afrika was arrested outside the newspapers' offices on Wednesday by members of the Hawks special police unit He was apparently arrested for the possession of what police claim was a fraudulent letter of resignation from Mpumalanga premier David Mabuza to President Jacob Zuma.

The meeting would take place at Sanef offices in Johannesburg at 10am. Meanwhile, editors of major newspapers in South Africa launched a campaign to fight what they call attempts to curtail freedom of expression and the free flow of information. In a declaration, 37 print editors said they were "deeply concerned" about proposed new legislation and a media tribunal. "We vigorously oppose the restrictive clauses in the Protection of Information Bill and the proposed Media Appeals Tribunal (MAT)."

In the declaration, called the Auckland Park declaration, they appealed to the government and the ANC "to abide by the founding principles of our democracy and to abandon these proposed measures". They said freedom of expression and access to information were the "lifeblood" of the South African democracy and that the media was "at the very heart of the struggle for freedom". According to a resolution taken at the ANC's 52nd National Congress in 2007 in Polokwane, the establishment of a Media Appeals Tribunal should be investigated.

The resolution endorsed "that such investigation be directed at examining the principle of a MAT and the associated modalities for implementation". "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."

Source: Mail & Guardian

ANC should substantiate tribunal statements

The African National Congress should act responsibly and fairly by providing evidence to back up its arguments for a media appeals tribunal, Media Monitoring Africa (MMA) said on Monday. "The [ANC discussion] document unambiguously accuses the media of irresponsible and unfair reporting... however it could be accused of doing the very thing that it condemns [by] making unsubstantiated accusations," MMA director William Bird said in a statement.

Bird said that three specific statements should be backed up. Firstly, the ANC needed to prove how parliamentary appointments to the tribunal would be fair, considering that Parliament was dominated by the ruling party. Secondly, the party needed to prove the Press Ombudsman was biased in his rulings. Lastly, statistics needed to be provided to show how many citizens had complaints regarding media appeal decisions.

The ANC document had said that South Africa was well aware of unregulated power and unbridled capitalism by a select few media houses. Bird agreed there should be greater public ownership of the press code but not at the expense of over-regulation of print media. The MMA was setting up a monitoring project to get concrete evidence on media performance as well as strengths and failures.

The ANC was to meet media on Tuesday to discuss, amongst others, the tribunal, which if introduced would adjudicate complaints from citizens about media publications.

Source: IoL

These people are dangerous - Malema

The African National Congress's stance on a media tribunal remained the same as in the Polokwane resolutions, a party spokesman said on Sunday. This came after ANC Youth League president, Julius Malema, told about 500 delegates at a Free State Conference in Bloemfontein on Saturday that the institution of a media tribunal was not up for debate.

"I don't know what Julius (Malema) said, I didn't hear him," ANC spokesman Ishmael Mnisi told Sapa. "But the ANC's viewpoint of the media tribunal remains the same as the Polokwane resolution."

According to the Polokwane resolution, which was taken at the party's 52nd National Congress in 2007, "Conference adopts the recommendation of the Policy conference that the establishment of a MAT (Media Appeals Tribunal) be investigated." It further "endorses that such investigation be directed at examining the principle of a MAT and the associated modalities for implementation. "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."

In his address to Saturday's youth league conference, Malema said: "We have already decided. We want Parliament to appoint a tribunal, make it law." Malema said the media must be regulated because "they think they are untouchable." "These people are dangerous," he told the delegates. He said: "They write gossip and present it as facts."

Malema was echoing his organisation's support for the tribunal expressed earlier in the week. On Wednesday the youth league said in a statement its parent party should not be discussing the media tribunal, but rather introduce it now to tackle what they believe are attacks on their organisation and others. The possibility of a media tribunal has drawn widespread criticism.

On Tuesday the ANC would meet with media representatives at Lilliesleaf in Sandton, Johannesburg, to discuss, amongst others, the tribunal. "We'll talk about it on Tuesday," Mnisi said. "But we stick with the Polokwane resolution that the possibility of a media tribunal should be investigated."

Source: IoL

Media tribunal 'would be a very dangerous move'

A media tribunal would be an "imposition" on media freedom, press ombudsman Joe Thloloe warned on Friday. "Any system imposed from outside the press itself will be an imposition and in violation of the Constitution," Thloloe told the South African Press Association. He was responding to the African National Congress's (ANC) release of a discussion document, entitled "Media transformation, ownership and diversity", which proposes the setting up of a "Media Appeals Tribunal" to make the media "accountable".

Thloloe said he approached the ANC about a month ago to try to get clarity on talk of a tribunal, which the ANC said would complement the role of the press council and press ombudsman. "I was saying we were getting two different positions. The one, from Polokwane, that there will be an investigation into the possibility of a media tribunal ... But also, another position, coming from the alliance very strongly, is a view that a tribunal should be established. I went there to ask, where are we standing, is there going to be in an investigation or is it [the tribunal] going ahead? [I was told] they are going to recommend that Parliament will do an investigation," said Thloloe. He said he would be "happy" to participate in an investigation but expressed doubts about its intentions. "We are very happy to participate in any investigation, but what worries us are the people who have already made up their minds."

The ANC document criticised the press ombudsman, saying he could not be objective. The document states: "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."

But Thloloe, a veteran journalist with almost 50 years' experience, said the self-regulatory system of the press ombudsman had been copied from various other systems around the world. "The press ombudsman's office and the press council are functioning well ... it doesn't need anything else," he said. The ANC discussion document did not really further "flesh out the proposal" of a media tribunal, he added. "It's a very strange document ... The arguments they have raised so far are not convincing; we can't take it further because they haven't fleshed out the proposal."

South African National Editors' Forum (Sanef) chairperson Mondli Makhanya on Friday said Sanef would request a meeting with the ANC to have a "decent conversation" about media freedom. "There seems to be a huge gulf that has developed between the ANC and the media. We want to sit down with them and a have a decent conversation," Makhanya told Sapa. We will be requesting a meeting with the ANC."

ANC secretary general Gwede Mantashe on Thursday invited newspaper editors to join the ruling party's debate on setting up a statutory media tribunal. But Makhanya said there was no way Sanef would ever be open to the idea of such a tribunal. "A media tribunal would be unconstitutional and totally against media freedom. It would be a very, very dangerous move."

However, Sanef would be willing to discuss the role of the press ombudsman and press council. Makhanya said the media was not only accountable to the ANC, but to the public, and if the public felt the print media's self-regulation could be improved, it needed to be discussed. "We would be open to a discussion on how it can be strengthened," he said.

The ANC wants an independent statutory body accountable to Parliament to deal with complaints against newspapers, instead of only using the press ombudsman, who currently deals with complaints. Mantashe said on Thursday, according to the Star: "Our invitation is that the media must engage in that debate constructively, throw around ideas and not defend its own turf. "The fact that editors and columns in the newspapers are on the defensive is not going to stop us from having that discussion. It's up to them if they want to contribute to that debate, and actually to influence it. It is up to them, if they think they are on the defensive and must take a laager approach to that discussion, they are doing that at their own peril," said Mantashe.

Source: Mail & Guardian

Editors decide to fight moves to muzzle media

Any attempt by the government to control the media would be opposed, the SA National Editors' Forum has said. In a statement on Sunday, Sanef reiterated its firm opposition to any attempt by the government to control the media, such as the statutory media tribunal proposed by the ANC. The decision was taken at Sanef's annual general meeting in Joburg. "The industry's editorial self-regulatory system, the Press Council with its Press Ombudsman and Appeals Panel, dealt effectively with public complaints in the way similar institutions acted in 60 democracies throughout the world," Sanef said.

Any control would restrict media freedom and contravene the freedom of expression rights in the constitution. The forum also expressed concerns about unsubstantiated complaints by senior ANC members about the Press Council, as well as attempts to discredit the judiciary.

It deplored the increasing attempts by the government to exercise control over the media through legislation such as the Films and Publications Amendment Bill, the Protection of Information Bill and the National Key Points Act.

Source: IoL

ANC is committed to protecting free speech

In the front of his book The Fourth Estate, ex-editor of the Sunday Times Joel Mervis quotes former British Prime Minister Stanley Baldwin, who in 1937 said: "What the proprietorship of these papers is aiming at is power, and power without responsibility, a prerogative of the harlot throughout the ages".

Part of the ANC's resolution calling for debate on the Media Appeals Tribunal deals with accountability of the media.

Noting that "freedom of expression in society, including freedom of media, is located within the context of the Constitution of the Republic" and that the "media conducts itself in many instances to the detriment of the constitutional rights of others", the organisation argues that the media should contribute to the transformation of this new society and "be accountable for its actions".

What these quotes show is that the increasing exasperation felt by South Africans about media in general and the commercial press in particular, is not unique to South Africa. Of course here the dynamics are decidedly different from Britain in the 1930s, but the problem is the same a media that believes it is not subject to societal accountability. The most problematic fact about the South African media landscape is the lack of a diverse ownership profile, which in turn has an impact on the media products on offer from the commercial press.

Three large companies, Media 24, Independent Group and Johncom (the latter recently renamed Avuso), own virtually all the newspapers in this country. The vast majority publish only in English and Afrikaans. In the middle of last year, the ANC policy conference adopted the resolution cited above. It called for an investigation of the feasibility of establishing a Media Appeals Tribunal. This resolution was confirmed at the ANC's December conference in Polokwane. Not surprisingly, the commercial press is opposed to this idea. They argue that it is tantamount to interfering with the freedom of expression and freedom of media guaranteed under the Constitution.

The actual resolutions are interesting to read and should in fact be broadly circulated so that they can form the basis for public debate around the role of the media in a society in transition. Not surprisingly the print media has gone into attack mode and sensationalised the proposals as an attempt to control the media. What they fail to appreciate is that this is precisely the type of response that confirms to the public that the media is unwilling to introspect or acknowledge that there are problems.

On the whole, space is not provided for critical, independent-minded black people to air their views either about the media or matters that would upset white people. There are exceptions. When editor of The Star Moegsien Williams approached me in 2006 to write for the Independent Group, he stressed that he wished to make the opinion pages of more representative. City Press is also an exception. It is always possible to trivialise the ANC's concerns as an attempt to force the press to be less critical of it or the government. There is a far bigger body of public opinion that believes the commercial press does not reflect post-apartheid reality.

The resolution is a reflection of long and frustrating appeals to the media to respect the rights of all people and to try to be present in this democratic phase instead of being stuck in a default consciousness from our unequal past. If a referendum were to be to be held on the establishment of an Appeals Tribunal, it is probable most Africans who read the commercial press would say yes to the question of whether or not it should be established. The resolution reaffirms the ANC's commitment to media freedom, which it says is entrenched. It notes "that the ANC is faced with a major ideological offensive, largely driven by the opposition and factions 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 relations".

The ANC envisages the Tribunal to be a forum where the rights to freedom of expression can be balanced with other constitutional rights. It would adjudicate complaints by individuals against the print media in the same way as BCCSA and the Complaints and Compliance Committee of Icasa do in respect of the electronic media.

They believe that the Tribunal would not supplant, but strengthen the current Ombudsperson"s office. These are proposals for discussion. Despite my longstanding criticisms of the commercial press in this country, I have serious reservations about the desirability of such a Media Tribunal. While the motivation is persuasive, it is not likely to work in practice. It has the potential for acting as an editorial constraint, which is not at all what the intention is. The sense of responsibility and accountability that we seek as a nation, cannot be achieved through such a mechanism.

Other ways of ensuring representivity in the newsrooms and ownership is for Black business to either buy into existing media houses or set up their own. Also, all of us have a choice as to which newspapers to read. If papers do not reflect all perspectives, buy the one that does. Those who read poor quality newspapers out of habit, deserve to be aggravated. The key issue raised in the resolution is that as a matter of urgency the commercial press must be brought into the BEE charter processes.

The print media should give their readers an opportunity to debate the resolution by extracting it and giving a fair opportunity to ANC to explain to the public why they came to this conclusion. Scare tactics won't assist a balanced discussion of the implications. This is a chance for the commercial press to turn over a new leaf and to listen to the public. Humility can go a long way.

Source: IoL