As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
When Tony Blair became leader of the British Labour Party he set out to befriend media mogul Rupert Murdoch. Murdoch owns The Sun, the biggest tabloid newspaper in Britain, as well as Sky News. In previous elections The Sun had supported the Conservatives and Blair understood that he needed the support of The Sun (topless page three girls included) to win the next election. He soon got that support and in 1997 won the general election in a landslide.
The Sun remained a supporter of the Labour Party in election after election but switched sides before the general election earlier this year. Labour, of course, lost this election to a coalition of the Conservatives and the Liberal Democrats. (The fact that Sky News was obviously rooting for the Conservatives might also have helped a bit.)
Clearly the African National Congress (ANC) does not share Tony Blair’s Machiavellian view of how to influence the media. In recent days several ANC leaders and spokespeople have revived the idea of a Media Appeals Tribunal. It is unclear what this Tribunal would do or to what extent it would impose the ideological world view of the ANC on the media.
For Gwede Mantashe, it seems, a Media Appeals Tribunal will help to “correct” the anti-ANC bias in the media. He argues that the media is driven by a dark conspiracy to discredit the National Democratic Revolution (conveniently forgetting that the vast majority of South Africans receive their news from the SABC, a state broadcaster masquerading as a public broadcaster).
Blade Nzimande would like to see the Tribunal used to stop the alleged corruption in the media. He points out, correctly, that the Ashley Smith affair asks some serious questions not only about the integrity of Ebrahim Rasool, but also of Smith and other members of the media and calls for a re-evaluation of the role the media plays in South Africa.
(Is it not ironic that a cabinet Minister has taken the allegations made by former Cape Argus reporter Ashley Smith at face value and has used it to argue for the institution of a Media Appeals Tribunal, while the President has appointed the very person who has allegedly bribed Smith as our ambassador to Washington? Will Nzimande demand that the appointment be rescinded or will he show himself to be a rank hypocrite?)
ANC spokesperson, Jackson Mthembu, so it seems, want to use the Media Appeals Tribunal to censor the media and to stop them publishing things that might be upsetting or distasteful. Lambasting the Mail & Guardian for publishing a picture of the highly controversial Mandela autopsy painting, Mthembu stated:
This unbridled freedom of the media, as evidenced by projection of this so called art in the Mail and Guardian, confirms that the self-regulated print media environment is a recipe for disaster and negates the core values we hold dear as the society as contained in our constitution.
All these statements have at least two very scary things in common. First, it shares an utter lack of understanding of freedom of expression and the media in a well-functioning constitutional democracy. Second it endorses a view that ideas, facts, practices or opinions that the ruling party opposes or thinks is dangerous or harmful (to itself, to the state?) should not be published in the media and that a Tribunal should regulate the media to stop them printing such things.
In an open and democratic society, the media is an important and powerful player. It would be naive to think that members of the media do not have political views and that such views are not reflected in the choices of stories they carry and the way these stories are told. What is excluded is often just as important as what is included.
That is why one does not have to be a rocket scientist to know that the SABC is close to a mouthpiece of the ANC, while ETV and the print media are more critical of the ANC. No wonder the ANC wins every election with more than 60% of the vote, as the SABC is the main source of information and news for almost 80% of South Africans.
A free media is important because it protects and enhances our human dignity. It does this by providing us with different views so that we can make up our own minds about who we are, what we think and how we want to live. A free media helps us to have some agency and thus to become people whose inherent human dignity is respected.
The diversity of views seem all important, which means that as a rule, the majority or the majority political party should not be able to tell the media what it can and cannot publish as this would infringe on the human dignity of every South African. If we know nothing except that which we are allowed to know by our leaders, we do not live lives of dignity. Instead we live lives as people who are only half human, cut off from a sense of self, part of a collective, yes, but not able to change our minds or decide for ourselves what is good or bad in our world and how we want to deal with this reality.
Of course, in a democracy, political parties try to woo the media to get them to write nice things about them. If they make mistakes, they try and manage the media to limit the negative effects of their mistakes. Helen Zille, as a former journalist, is quite good at this kind of media management when she keeps her paranoid anti-ANC rhetoric in check. ANC leaders are seldom good at it and if they are (like Tokyo Sexwale) they are viewed with suspicion.
People who work in the real media (as opposed to those who work for the bureaucratic pro-state SABC) like to think of themselves as cool, intelligent and hip. When the ANC talks about the National Democratic Revolution, deploy fake revolutionary phrases that went out of fashion around the time that the USSR invaded Hungary, and talk about dark conspiracies by the enemies of the new order (by which they usually mean critics of the ANC and the government of the day), they alienate ordinary, decent, journalists who might otherwise have been ideologically rather close to the ANC.
What the ANC and the government it leads actually needs is not a Media Appeals Tribunal, but a media strategy to woo the non-state media to its side by talking the language of ordinary people and citizens. Instead of talking that fuax revolutionary drivel and blaming the Dark Lord Sauron, anti-transformation forces, the CIA or the Devil himself for their bad record on service delivery and for the bad publicity on corruption and the like, the ANC needs to face up to the facts and take quick and decisive action to correct mistakes to try and convince the real media that it really, really cares and is doing its best to stamp out corruption and to improve service delivery.
The ANC has been spoilt by its praise singers at the SABC, so it does not understand or respect real media freedom. Thus it cannot see the difference between disagreeing with something the media did (publishing the Mandela painting, for example) and demanding that the media be stopped from doing it. In a real democracy there are laws of defamation that protects the dignity of everyone and the media must operate within those laws but otherwise freedom of the media means exactly that: freedom to publish even things that the majority party does not like or finds despicable.
When the media does something that one really finds upsetting, one is of course entitled to criticise them. One can call the Mail and Guardian callous for publishing the painting of Mandela’s autopsy, or one can argue that the painting is just a really bad piece of art and that the Mail & Guardian has been sensationalistic and has shown a shocking lack of taste in publishing a “work of art” that is no more than a cheap and pathetic attempt to garner publicity for the artist.
That is all fair comment. But to suggest that the Mail & Guardian should not be allowed to publish the painting is to endorse a kind of censorship that cannot be squared with a constitutional democracy. I for one want to know what the fuss is about and want to make up my own mind on whether the painting is a cheap and pathetic publicity stunt or a meaningful and thought-provoking meditation on wisdom and learning.
The problem is that the ANC has not yet embraced the notion that its own views about what is right and wrong, what is acceptable or not, about what is an affront to the dignity of one of its leaders or not, is just that: its own view and one of many. It has not yet accepted that it does not speak on behalf of the nation (what a paternalistic notion!) and can thus not tell everyone what it is allowed to publish or to think. Its views – no matter how widely shared, cogent or laudable – is just one set of views.
There are many other views and if we want to live in a real democracy (and not the kind of fake democracy found in Hungary after 1956) we have to allow the many different views as long as the expression of these views stays within the bounds of the law of defamation.
This does not mean we cannot get upset or that we have no right to express our contempt and anger at the media. It just means that we cannot impose our own view – which is one of many different views that must be allowed to flourish in a society based on human dignity – on all.BACK TO TOP