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

Vavi questions Protection of Information Bill

Congress of South African Trade Unions (Cosatu) secretary general Zwelinzima Vavi criticised the proposed Protection of Information Bill during the Ruth First memorial lecture at the University of the Witwatersrand (Wits) on Tuesday. If Ruth First were alive, she would read the proposed Bill and ask where all the democrats had gone, he said, adding that it made a mockery of her work as a journalist.

First was an investigative journalist between 1947 and 1982, and was at the heart of the liberation movement in Southern Africa, participating in key moments of the struggle against apartheid, including helping to draft the Freedom Charter. She would be shocked if she came back and saw the deterioration in the country's economy, education system and health system, and the vast disparity between social classes, said Vavi, asking: "Was it worth her struggle?"

In 1956, First was one of 156 people arrested for high treason and spent 177 days in solitary confinement. She died in 1982 when a parcel bomb, sent to her by apartheid agents, exploded in her office at a university in Maputo. Vavi ended his speech saying: "Let the 28th anniversary of Ruth First's death reignite our passion for economic justice, our hatred for inequality and our impatience with reformism. The working class will not wait forever."

Meanwhile, a University of Cape Town academic has offered to hand over a year of his salary to the chief state law adviser if the Protection of Information Bill passes scrutiny by the Constitutional Court. Constitutional law expert Professor Pierre de Vos proposed the wager during a Harold Wolpe Trust seminar at the university on Thursday evening. He said the court would find that the controversial Bill, which seeks to set new rules for classifying information as secret, was simply too broad. "Even if you can say that the purpose for the Bill is an important one, which I think is arguable, they will say there are far less restrictive and limiting manners to achieve the same purpose, and for that reason it is not reasonable and justifiable in an open, democratic society," De Vos said. "If the Bill is found in its present form to be constitutional, I will give one month or one year of my salary to the person who drafted this Bill, or maybe the chief state law adviser -- on the condition that he will give one month or one year of his salary to me if the Constitutional Court finds otherwise."

Source: Mail & Guardian

Malema to appeal hate speech judgment

The president of the African National Congress Youth League (ANCYL), Julius Malema, is going to appeal the Johannesburg Equality Court ruling, which found him guilty of hate speech, in a higher court, his organisation said on Tuesday. This, spokesperson Floyd Shivambu, said in a statement, followed the ANCYL's agreement with Constitutional Law expert, Pierre De Vos's sentiments that the ruling was wrong Shivambu pointed out De Vos' blog entry on Constitutionally Speaking, on Tuesday, that the ruling did not illustrate Malema's intention to incite hurt on rape victims or women victims "Many people fail to understand that hate speech as defined in the Promotion of Equality and Prevention of Unfair Discrimination Act requires more than making hurtful or harmful statements about someone," De Vos said "If I say that the President is a sex obsessed idiot, or that [Democratic Alliance's] Helen Zille is a racist madam, it might be rude and it might even be defamatory but it would not constitute hate speech as I would not be saying anything based on Zuma or Zille's race, sex or sexual orientation," he wrote.

Shivambu said: "Unlike misguided elements, the ANCYL believes that this observation is sober and constitutes part of the reasons why the president of the ANCYL will appeal the ruling in a higher court. "In more than one occasion, ANCYL president has expressed consistence with values of the ANCYL, his total commitment to the emancipation of women from class, national and gender oppression. "The ANCYL and its entire leadership respects South Africa's legal and judicial systems and processes," Shivambu said.

He added that the organisation would work within these institutions and processes to ensure that proper interpretation was given to the country's laws. Sonke Gender Network took Malema to court after he said with reference to President Jacob Zuma's rape accuser that "when a woman didn't enjoy it [sexual intercourse], she leaves early in the morning". "Those who had a nice time will wait until the sun comes out, request breakfast and taxi money. In the morning that lady requested breakfast and taxi money. You don't ask for taxi money from somebody who raped you," Malema had said.

The court found him guilty of hate speech on Monday and he was ordered to apologise for his statements unconditionally within two weeks of the judgment and pay R50 000 to People Opposing Women Abuse (Powa), a shelter for abused women.

Source: Polity

Zille seeks legal advice on Hlophe hearing

The Judicial Service Commission (JSC) could find itself facing a second challenge to its decision on Judge John Hlophe, this time from Western Cape premier Helen Zille. Zille said on Friday her office was seeking legal advice on whether she had been "unconstitutionally excluded" from the JSC committee that met on the Hlophe issue last week.

The JSC said it would not to proceed with a probe into allegations that Hlophe tried to influence Constitutional Court judges in a matter relating to President Jacob Zuma. Zille's announcement followed a piece published earlier in the day by constitutional law expert Pierre de Vos, on his blog Constitutionally Speaking.

De Vos asked whether Zille should have been part of the committee when it took the decision. "A clever and alert reader of this blog thinks so -- and I agree," he said. "This would mean the JSC was unlawfully constituted when it made its decision and on that ground alone the decision could be set aside by a court," he said. He said section 178(k) of the Constitution laid down that when the JSC considered "matters relating to a specific high court", the premier of that province or her representative had to form part of the body. Premiers already formed part of the JSC when it decided on appointments for the high court in their provinces, so the composition of the high court was deemed to be "a matter relating to a high court". "It seems to me that it follows by necessary implication that if the premier is involved in the appointment of any judge, he or she must also be involved in the possible removal of any judge," De Vos said.

The article by Pierre De Vos can be found here.

Source: Mail & Guardian

Private prosecutions are rare - and expensive

Private prosecutions are rare in South African legal history and rarely succeed - perhaps one reason why the Democratic Alliance has decided to first seek a full judicial review of the decision to drop charges against Jacob Zuma.

Under the Criminal Procedure Act, any private person may launch a prosecution if the National Prosecuting Authority declines to prosecute or halts a prosecution and issues a certificate of nolle prosequi (we shall no longer prosecute).

The prosecution would then be initiated by summons.

But such a person would have to prove some substantial and peculiar interest in the issue - and would also have to prove they were a direct victim of the alleged crime.

The act is silent on how a private prosecution would obtain evidence. In the case of Zuma, this evidence is in the hands of the State.

A legal source said the only way to obtain the information would be through an application under the Promotion for Access to Information Act. By applying for a judicial review, the DA may be on firmer legal ground.

Constitutional law expert Pierre de Vos said that while the NPA had the discretion to decide whether to prosecute, it had to make that decision within the terms of the law.

"One could argue a review is necessary in terms of deciding whether the NPA met its constitutional obligations," De Vos said.

"Any decision (on whether to prosecute) would have to be based on the NPA's prosecutions policy spelt out in Section 179 of the constitution.

"The question would be, was that followed when the decision was taken - or was it made on non-legal, or political, grounds? As an organ of state, the NPA can act only in terms of the law."

Professor Marinus Wiechers, retired Unisa professor of constitutional law, said a class-action suit could be another option open to those who wanted to challenge the NPA's decision by way of private prosecution.

"The constitution does make provision for class-action suits, representing a broad public spectrum of interest, so it would not be totally far-fetched," he said.

Gauteng lawyer John Ngcebetsha said: "I think most people would rather want this to be aired in a public court. What we have is clearly a national constitutional crisis."

Source: IoL

Zapiro speaks out

Cartoonist Jonathan Shapiro on Monday defended his controversial cartoon of Jacob Zuma preparing to rape justice, saying he thought "very, very carefully" before doing it. The African National Congress and its tripartite alliance partners have condemned the cartoon as disgusting, while ANC secretary general Gwede Mantashe labelled it racist.

The cartoon, published in the Sunday Times under Shapiro's pen-name Zapiro, shows a blindfolded female figure labelled "justice system", being pinned down by Zuma's political allies. The ANC president is depicted in the cartoon unzipping his pants, while Mantashe urges him: "Go for it, boss!"

Shapiro said he "absolutely" refuted the racism charge, and that his record in the struggle years spoke for itself. "There is a very, very pronounced tendency in this country towards exceptionalism, as if our politicians are more sacrosanct than politicians worldwide. That I take issue with," he said. "I really feel strongly that they have to take a hard look at what they are doing and not use the red herring of racism." He said he was not surprised that the cartoon had provoked strong reaction, as the image was "outrageous", and a "very explosive thing". He had thought "very, very carefully" about how women would view it, and before publication sent it to several women friends whose opinion he trusted. Their immediate reaction was one of shock. However they all then said that the cartoon not only showed graphically what was actually happening to the justice system and constitutional principles, but that it contained a second level of criticism on violence against women in a very patriarchal society.

Shapiro said the blindfolded figure of justice was an allegorical figure going back centuries. "The fact that Jacob Zuma has this personal history is his problem," he said.

Zuma, who is president of the ANC, was charged with raping a young woman in 2006, but was found not guilty. Earlier on Monday the ANC, its youth league and the SA Communist Party said in a joint statement that the cartoon was distasteful and "borders on defamation of character". The organisations said the Sunday Times had disguised abuse as press freedom in publishing it. "The cartoon rubbishes the collective integrity of the alliance and constitutes yet another continued violation of the rights and dignity of the ANC president," they said. The organisations said they had never attacked the judiciary, but criticised unfair treatment of Zuma in the normal public discourse of a democracy. "There can, therefore, be no justification for such unwarranted insult on our leadership by the Sunday Times."

Zapiro, they said, had been "consistent in unwarranted attacks on the movement and its leadership". "In a country where we have a serious scourge of fighting violence against women and in particular rape, we need to be very careful how we use the notion and the concept of rape loosely to demonstrate any form of perceived abuse."

Cosatu also expressed disgust at the cartoon, saying it was in extremely bad taste. In his online blog Constitutionally Speaking, University of the Western Cape constitutional law academic Prof Pierre de Vos said on Monday that though he had always been a great fan of Zapiro, he wondered whether the cartoonist had now gone too far and done something "immoral and ethically deeply problematic". He said he agreed with Zapiro that some of the leaders who had been championing Zuma's cause had acted despicably, and that Zuma, through his silence, had abetted them. However he wondered whether by using the metaphor of rape, Zapiro was not "cheapening" the horror of the act and helping to desensitise people.

De Vos also asked whether Shapiro was undermining respect for the judiciary he was purportedly defending, by suggesting subliminally that Zuma should have been convicted in the rape trial. His piece drew a flood of comments from his readers, most of them disagreeing with him. "It is time someone drew attention to the shocking behaviour of these political figureheads and their most avid supporters," wrote Thea Beckman. "We cannot allow a man who believes loyalty to be above the Constitution to take the reins of our country. Well done Zapiro."

Source: IoL