An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
There is no doubt that the media is facing the greatest threat to its freedom since the advent of democracy. The proposed Protection of Information Bill and Media Appeals Tribunal, the proposed Protection from Harassment Bill (which thankfully seems to have been put on hold), the proposed Independent Communications Authority of South Africa Amendment Bill and the proposed Public Broadcasting Service Bill all aim to tighten the control of the government over the free flow of information.
We are far from the dark days of apartheid (see picture below) when the Nationalist government muzzled the press to try and retain its illegitimate power. We live in a constitutional democracy now and our courts will probably play a pivotal role in preventing the muzzling of the media (or will at least limit the effectiveness of such attempts). They will do so, because most judges understand that the free flow of information is, of course, the lifeblood of any democracy.
The question is: why now? Why is the government of the day orchestrating this concerted effort to change the way in which our media report on government activities? It is tempting to find an answer by turning to the personalities involved and arguing that President Zuma and other ANC leaders are upset about how the media has reported on their own activities and actions. But another reason for this attack on the media suggests itself and can be found in the utterances and documents of the ruling party itself.
Perhaps the move against the free media is based on a realistic acknowledgement on the part of the ANC that it is facing a crisis of legitimacy. It seems incapable of addressing this crisis, so some of its leaders might believe that the only way to deal with the problem is to stop the reporting on events that has precipitated this crisis.
I offer a few quotes below to illustrate this point. President Jacob Zuma at a March 2008 National Executive Committee (NEC) Meeting:
When elected leaders at the highest level openly engage in factionalist activity, where is the movement that aims to unite the people of South Africa for the complete liberation of the country from all forms of discrimination and national oppression? When money changes hands in the battle for personal power and aggrandizement, where is the movement that is built around membership that joins without motives of material advantage and personal gain? When the members of the NEC themselves engage in factionalist activity, media leaks and rumour-mongering, how can we ex pect the membership of our movement to carry out their duties toobserve di scipline, behave honestly and carry out loyally the decisions of the majority and the decision of higher bodies?
From the admirably frank document on “Leadership Renewal, discipline and organizational culture” prepared for the ANC National General Council later this year, which highlights the following tenancies in the ANC:
12.1 Leadership in the ANC is seen as stepping-stones to positions of power and material reward in government and business (Organisational report to the 1997 Mafikeng Confe rence).
12.2 The emergence of social distance between ANC cadres in positions of power from the motive forces which the ANC represent, with the potential to render elements in the movement “progressively lethargic to the conditions of the poor.” (Strategy and Tactics, 1997)
12.3 Disturbing trends of “careerism, corruption and opportunism,” alien to a revolutionary movement, taking roots at various levels, eating at our soul and with potential to denude our society of an agent of real change. (Midterm Review, NGC, 2000)
12.4 Divisive leadership battles over access to resources and patronage becoming the norm and allegations about corruption and business interests of leadership and deployed cadres abounding (Organisational report to the Stellenbosch Conference, 2002).
49. Failure to build a New Person (continued the 2000 NGC document), among revolutionaries themselves and, in a more diffuse manner in broader society, will result in a critical mass of the vanguard movement being swallowed in the vortex of the arrogance of power and attendant social distance and corruption, and, ultimately, themselves being transformed by the very system they seek to change. An important challenge, among others, is thus to ensure a systematic intervention by the ideological centres and institutions of society, as well as mothers and fathers and the family as a whole in shaping social values and a new morality.
53. Strategy and Tactics (2007: par. 138) recognizes the challenges and ‘sins’ of incumbency (patronage, bureaucratic indifference, arrogance of power, corruption) and suggests approaches to the management of relations within the organization. Our ability to manage this minefield, it contends, will determine “our future survival as a principled leader of the process of fundamental change, an organization respected and cherished by the mass of people for what it represents and how it conducts itself in actual practice.”
From the various ANC discussion documents it is clear that the problem of legitimacy facing the ANC has long been acknowledged by the movement. As far back as the Stellenbosch conference in 2002 these “tendencies” were identified. But now, eight years later, the problem has become more acute and the movement has been unable to address them in any meaningful way. It is one thing to admit the problem. It is a completely different matter to deal with it effectively.
A culture of forgiveness (or some would call it impunity) starting at the very top of the leadership, makes it very difficult to address the problems and to take decisive action against ANC leaders in government.
Tony Yengeni, due to his admirable role in the struggle, is carried shoulder high to prison. President Jacob Zuma, due to his admirable stance against the dictatorial tendencies of the former President, is elected as leader of the movement despite the fact that he took money from a crook, did favors for that crook and then submitted a fake loan agreement to Parliament to try and justify this. Ebrahim Rasool is accused of handing out brown envelopes to journalists and, because of his good work in the Western Cape, is appointed as ambassador to Washington. MP’s abuse the travel scheme of Parliament, is convicted and remain in their positions.
The list is endless.
The only way the ANC is going to address the problems so frankly and admirably highlighted in the discussion documents is to fundamentally change its prevailing culture which rewards (or at least turns a blind eye) to transgressions, illegality and even criminality.
What is needed is a body (perhaps an improved version of the Scorpions) that will vigorously and impartial investigate corruption, nepotism and the like across the board. Such a body should instill fear in the hearts of every official and politician – whether it is the President or a ward councillor in Lusikisiki. For such a body to have any effect, no one should feel safe from investigation and prosecution. And once a person is investigated and successfully prosecuted he or she should be expelled from the movement – at least for a certain period.
But because the problem seems so widespread (one could say endemic) – as is made clear by the ANC discussion document – it will be very difficult if not impossible for the ANC to take this rout. That is why the Scorpions was abolished and, I would suggest, why the ANC is trying to tighten its grip on the media. Many ANC leaders understand that it has a problem and know that the movement is incapable of dealing with it effectively. The next best thing is therefore to try and hide this fact from the electorate.
But because we live in an open and democratic society this will not be possible. The attempts by the ANC to deal with the firmly entrenched master narrative (a narrative that suggests the ANC has become corrupt and heartless) by muzzling the media is therefore doomed to failure. But I guess some in the ANC believe it is worth a try.BACK TO TOP