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?
What amazes me is how quickly this got done!!! If only we had the same resolve to get more important things in order.
Z – Ditto. The SABC is being reduced to the South African Pravda.
But, Pierre – doesn’t the Constitution make it quite clear when it says “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”? Why do we even need to find other constitutional arguments?
The constitution sank. LoL
Have to agree with Clara. Surely this is not a very hard argument to make?
I think it would be harder to prove that just because the ruling party weilds so much power in the matter that they will abuse it. If the President didn’t then why would they.
And it really isn’t concrete, its mainly implied.
Clara // Aug 14, 2008 at 7:51 pm
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It will not be easy Clara. Whoever decides to challenge the legislation has to provide a basis for suggesting that the legislation will or may interfere with the Constitutional requirements that you have provided in your post. It will not be easy but it is definately doable.
In Administrative law Currie & de Waal discribes a scenario irising from the power of the president to choose the the head judges, it brought the authors to identify a possible future problem wich they termed “the counter majoritarian dilema”. Whilst separating powers of the diferent spheres of government, the judiciary could be manipulated by the executive if the president chooses judges that is pro-governing party. (which, according to some school of thought, is paranoia, because of the weights and balances)
This argument could also apply to some of the previous debates, but in the light of this debate I am also of the oppinion that the governing party should stay out of SABC’s descision making for promoting independant media.
@ Clara
Yes it does.
Prof
I was just thinking, remember when they was an allegation by the Mail and Guardian that one Snuki Zikhali was ‘censoring’ certain people from the broadcaster, then CEO Dali Mpofu responded that this was an attack by the ‘white and other unknown forces’ trying to ‘tarnish native south Africans’. Then it all came back to him as evident by his suspension over a spat with, none other than Snuki Zikhali. I can’t help but put similarity with the fact that when Thabo Mbeki was told to act against Mugabe way back, he & and the South Africa government responded as if this was just a western conspiracy against ‘Africa’. HOW many nights is he spending in Zim now?
Noted is the long absence by none other than Khosi himself
Clara – As Sne puts it, it won’t be easy, but defioinitely doable. In fact, it is the best line of argument to follow, and one will have to show that the legislation does not provide for an authority that is INDEPENDENT, because of this and that provision, and, therefore, that it cannot regulate broadcasting in the PUBLIC INTEREST. The current CC will no doubt interpret and scrap the change as unconstitutional, but, what will the CC post-Zuma do?
Mqo – Yes, and remember in Zim the internet facilities are not up to scratch – as noted in a previous altercation between you and Khosi.
Mqo // Aug 15, 2008 at 11:15 am
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Point being?
@ Sne
Everything starts off as a small and minor ‘thing’. As long as it is not nipped in the bug it has a tendency to grow and have a bigger effect, with the result that we are all left hitting our heads thinking if only we had SEEN and DONE something before it got to this stage.
Like a termite, eating up a tree, it all starts in the inside, unseen, but the effect is still there unless those termites are exterminated. How you terminate the termites may be painful, but necessary. In relation to the article, its my feeling that slowing and unseen to the peoples South African democracy is slowing been eroded, from the inside and we don’t know or rather we choose to ignore its happening. First it was the De la ray song, then the SABC and next…freedom of speech.
@ Rat or rather Rattus
I am back in RSA.
Mqo – I know, I was referring to Khosi. Is he back yet?
Mqo // Aug 15, 2008 at 1:58 pm
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Well said; thank you…
Mqo: very intriguing comment there about termites. As someone who studies insects, I know that termites only eat dead wood. What conclusions might we draw from that factoid?
@ Clara
Maybe the RSA constitution is already dead:)
Rat
Just mention TM and for sure he will coming running-oops, I mean writing.
@ Mqo
This is interesting. Could it be true that Khosi is TM. Where are you drawing your conclusions from. He is back from Zim. It might be Joel. If its true let Khosi come back to give us those OR Tambo speeches. Thats probably one thing I admire from him.
prof “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.”
This is true prof. But still the act I belive, should not take the right of the ruling party to appoint individuals (whether alliend to them or not) to serve on the board. So long as those individuals are competent professionals. That legislation probably answers the question whether Polokwane was good? ( Mqo is it not interesting who asked that question). Otherwise we would be seeing a lot of shady forced appointments and dismissals, on the banner of course, of irretrivable relationship (if there where reations in the first place.
“Maybe the RSA constitution is already dead”. Oh, don’t be so depressing, Mqo. I’m saying that South Africans must be alive to threats to our Constitution, be they real or imagined. The deadwood, suffused only with mindless idolatry, will once again vote ANC next year. The rest of us can kick up a big fuss now for what it’s worth, but ultimately they can put their cross next to the name of another party. Shouldn’t hurt a bit.
Khosi
My apologies for going of topic but I thought i would post this lovely extract from the M&G about TM;
As the talks dragged on, Mugabe said, he felt like “throwing a punch” in frustration, but he was inspired to remain calm by the demeanour of the South African president.
“Mbeki is a very patient man. He has the patience of Job,” said Mugabe. Job is the biblical hero who never despaired in God, despite his long and undeserved suffering.
Mugabe said he was grateful to Mbeki for his “statesman-like stewardship” of the power-sharing talks.
“The facilitator is cool; who are we to lose our cool?” asked the octogenarian”
Clara
Apologies for been truly depressing
Khosi
My apologies for going of topic but I thought i would post this lovely extract from the M&G about TM;
As the talks dragged on, Mugabe said, he felt like “throwing a punch” in frustration, but he was inspired to remain calm by the demeanour of the South African president.
“Mbeki is a very patient man. He has the patience of Job,” said Mugabe. Job is the biblical hero who never despaired in God, despite his long and undeserved suffering.
Mugabe said he was grateful to Mbeki for his “statesman-like stewardship” of the power-sharing talks.
“The facilitator is cool; who are we to lose our cool?” asked the octogenarian”
Clara
Apologies for been truly depressing
Mqo, I am sure mugabe felt like throwing a punch…….surely the potential loss of all that power might cause an old despot to lose patience?
And now Thabo Mbeki and Bob Mugabe has done what they are best with, the tactic of devide and dominate. They have managed to let Arthur Mutambara join forces with Bob, for a ministry perhaps, so as to devide the MDC’s opposition to Zanu-PF, so that Tsvangirai angrilly left the talks. Thabo and Bob are Bhuti’s, no?
Can we pliz change this blog to: http://www.zumaspeaking.co.za it doesnt go without the poor guys mention. i dont really like him but i emphatize with him. he should face his charges but the way this blogs attacks him YO YO YO – i gues the blogger is not human and has no feelings
Omigosh, Abosh, there you have gone and created a new website (that does not exist) all by yourself! of course there is need for a forum where public figures such as Jacob Zuma (and others – read the rest of the postings on this blog from page 1) can be criticized (and even vehemently and ad hominemly attacked) by those who oppose them. That does not mean that the commenters on this blog are not human and have no feelings. A public (political) figure must endure public scrutiny, attacks and criticism if he/she wants to remain in the position to which he/she has been elected.
but you cant create a site solely to attack one political leader. This is personal. let the name of the site be changed