Goodbey public broadcaster, welcome state broadcaster?

Few people in South Africa would dispute the fact that everything is not well at the SABC. Its Board and its CEO are engaged in a bitter fight while there has been a noticeable decline in the technical quality of the news programmes put out by the broadcaster.  (Although, ironically, news programmes seem to be more even handed and fair than in the previous two years – or am I imagining things?)

As I pointed out before, the present troubles started when Luthuli House – then still firmly controlled by President Thabo Mbeki – ordered ANC MPs to accept a list of new SABC board appointees that differed from the list agreed to by the portfolio committee after a process of public participation. Now the resurgent MP’s want to fire the Board that was illegally foisted on them and have passed the Broadcasting Act Amendment Bill that would allow them to do so.

The amendments are not a model of legislative clarity but it seems to amend section 15 of the Broadcasting Act in at least three important ways.

First, it states that the President must remove a member of the SABC Board from office “after due enquiry” and the adoption by the National Assemblv of a resolution calling for that member’s removal from office in terms of one of a list of specified grounds, thus giving the power to the National Assembly in effect to remove the SABC Board. This power previously vested exclusively in the President.

Second, it states that National Assembly may by the adoption of a resolution (but no reference is made in this section to the inquiry referred to above) recommend the removal of a member or members of the SABC Board from office on grounds already set out in the Act such as mental illness (although some may argue one must be mentally ill to want to serve on the SABC Board!), conviction of a crime of dishonesty, because of a conflict of interest or because of misconduct.

Third, it allows the National Assembly to reccommend the removal of members of the SABC Board from office on a new – very vague – ground, namely an “inability to perform the duties of his or her office efficiently”.

Some opposition MPs have argued that these amendments might be unconstitutional because they interfere with the executive powers of the President to appoint and remove members of the Board and because they pose a threat to the independence of the SABC Board.

I am not sure this is correct.

There is nothing in the Constitution that reserve the power to fire SABC Board members for the President. The amendments therefore do not infringe on the President’s executive powers as set out in the Constitution. Furthermore, as the members of the National Assembly must nominate the Board, it may make sense for them also to have the power to fire the Board.

The fact that the amendments also provide for the removal of SABC Board members on vague and non-objective grounds such as “the inability to perform their functions efficiently”, clearly does infringe on the independence of the Board – even if the Act is read as bestowing this power subject to a full inquiry by the National Assembly.

This new provision would allow the majority party in the National Assembly to remove any Board member (or the entire Board) if it does not like what the Board is doing. So a Board who has failed to toe the majority party line could be removed on the vague ground that the Board member or the Board as a whole has not been able to do its job “efficiently”. Board members therefore now have no security of tenure and if they wish to remain Board members will have to act in such a way as not to upset the majority party in Parliament. This is very troubling and might turn the SABC from a public broadcaster into a state broadcaster.

The problem is, there is nothing in the Constitution that safeguards the independence of the SABC Board. Section 192 merely states that “national legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society”.

A challenge to the amendments will therefore have to be based on a rather complicated argument that the Broadcasting Act, read with other legislation, will prevent the independent authority from regulating broadcasting in the public interest. Such a reading is not impossible, but it is by no means obvious. The legislation may therefore pass constitutional muster.

That, of course, does not mean the amendments are wise. On the contrary, they pose a direct threat to even the semblance of independence currently enjoyed by the SABC and it is more likely than not, that a SABC Board appointed to function under these conditions will lack the independence to withstand any pressure from MP’s to take a particular political line in its news broadcasts.

One can imagine Board members being hauled before the relevant portfolio committee to account for the lack of positive news about the government’s achievements or for being biased against Jacob Zuma, say. They can then find the Board was not efficient and fire the whole lot of them.

Maybe there are other constitutional arguments to be made for why this legislation is unconstitutional. Any ideas anyone?

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