Nkosana Sibuyi

Posted by Nkosana Sibuyi: 30 August 2010

The South African state is currently in a state of paralysis. It is in a hopeless state of disharmony. To paraphrase from William Butler Yeats, the centre is undoubtedly not holding and the ceremony of innocence is drowned. The architecture of the antagonistic contradictions in the current conjecture is negotiating its way towards the breakdown of social cohesion and solidarity. Without any doubt, the country must reignite the indomitable spirit of activism and resilience that marked the struggle for a democratic and open society against the apartheid juggernaut. The spirit of activism for the betterment of the country must be raised from ashes like the phoenix. This spirit must not disappear. It is not a shadow.

South Africa needs a change for the future. She must not allow the past to arrest the future. Nature does not allow a vacuum. It is in this realm that the current debate on the Protection of Information Bill and the proposed Media Appeal Tribunal (MAT) must be concluded in a manner that will entrench our belief in constitutional democracy. It is an invitation to engage in the public discourse and public policy, to identify with the need for straddling between condemnation and appreciation. A series of divergent views have been expressed on the bill and MAT. Worldviews expressed define a combination of rationality, foresight, whimsicality, triviality and low ebb arguments around media regulation. The debate is a byword for media and politics. To a certain degree, media reflects desires, wants and needs of society around the provision of information.

The germane conclusion which could be drawn from this discourse is that the nature of this antagonistic contradiction is one of the primary means of keeping us politically impotent. In the event that both the Bill and MAT pass the constitutional test, we shall ask ourselves: Why was the ANC and government allowed getting away with this regicide?

In his tome, The Rhetoric of Reaction, Professor Albert O. Hirschman, coined three principal reactive-reactionary theses known as perversity, futility and jeopardy. According to the perversity thesis, any purposive action to improve some features of the political, social or economic order only serves to exacerbate the condition one wishes to remedy. The futility thesis holds that attempts at social transformation will be unavailing, that they will simply fail to make a dent. Married to the above, the jeopardy thesis argues that the cost of the proposed change or reform is too high as it endangers some previous, precious accomplishment.

These three principal reactive-reactionary theses by Professor Hirschman bring with them a prism from which to critique, analyse and deconstruct the nature and character of the South African open society we seek to build. In pursuit of the creation of such an open, transparent and democratic society, South Africa adopted the National Constitution on 10 May 1996. Chapter 2 of the Bill Rights in that Constitution entrenches freedom of expression and the right to have access to information. In adopting the constitution and exercising the rights inherent in that statute, South Africa affirmed the essence of a post-apartheid governance system as a jewel in the crown. In a sense, the country provided rich lessons for Africa, the Diaspora and the world in a rapidly changing global polity. However, history will not absolve us from any deviation from the essence and tenets of the constitution that we hold dear.

South Africa persists to box above its weight, serving as a source of inspiration and a beacon of hope for the world. When the Economist was founded in 1843 it committed itself to “taking part in a severe contest between intelligence, which presses forward, and an unworthy, timid ignorance obstructing our progress.” In our current environment in South Africa the converse is true.

The history and destiny of the media in South Africa has been shaped by different organic developments. There are a number of newspapers or publications, founded by both whites and blacks that laid a basis for access to information and the public’s right to know. These include amongst others, Imvo Zabantsundu (1884), Ipepa lo Hlanga (1894), Izwi la Bantu (1897), Indian Opinion (1903) and Mochonono (1911). Other newspapers include Abantu Batho founded by Pixley ka Isaka Seme, Sol Plaatjie’s Tsala ea Becoana, Ilanga lase Natal edited by Charles Dube and F Manyakuane’s Naledi ea Lesotho based in Maseru. All these editors were both revolutionary activists and scribblers who played a germane role in the rise of black press in South Africa.

The role of the Weekly Mail (now Mail and Guardian) and the Bantu World (now Sowetan) cannot be left unrecognised. In addition, the emergence of the black press and the Drum generation of journalists in the 1950s produced erudite journalists whose strategic objective was the creation of a democratic, diverse and open society at peace with itself. The historic role in and of itself, played by and the past created by Ruth First, Percy Qoboza, Can Themba, Nat Nakasa, Henry Nxumalo, Arthur Maimane, Aggrey Klaaste, Lewis Nkosi, Bloke Modisane, Eskia Mphahlele, Tony Heard, Alistair Sparks and others helped create the essence of the future we seek to build. The past we inherited and the future we create are, to a remarkable degree, Siamese twins who depend on each other for their continued survival and existence.

It is this context that the current debate and discourse on the Protection of Information Bill and the proposed Media Appeal Tribunal (MAT) should be understood and deconstructed for clear-eyed understanding. The debate on these including the extent to which self regulation in the form of the Press Ombudsman and the Press Council have raised unresolved questions around the necessity and appropriateness of media control and diversity.

The current discourse on these issues raises a debate around media and politics. It reflects tension and dialectics about resolving a national agenda. Media regulation and supervision through legislation undermines the achievements that we have in constructing an open society.

Non-governmental organisations, journalists and some media commentators believe that the MAT and the Bill are an oblique attempt by the ANC to stifle the media and freedom of expression, freedom of thought and freedom of opinion. There is a widely held view to the effect that the bill and MAT would undermine the constitutionally guaranteed media freedoms. If approved, it would put the country back onto the apartheid system of governance and information management. This has brought with it reservations expressed that the existence of the tribunal could also result in self-censorship, that would militate against the right to have access to information. Nagging questions remained unresolved and unanswered: To what extent does self-regulation provide certainty in media diversity and accurate reporting? Of what use and significance is self-regulation as opposed to statutory regulation through an appeals tribunal?

It may as well be that the Press Ombudsman is not independent from dominant interests including editors and media owners who fund the Press Council. On the other hand, it may equally be argued that the MAT has been captured by narrow political interest including government’s pursuit to censor the media to avoid embarrassing exposures of wrongdoing. How effective is the self-regulatory system and the Press Ombudsman?

The approach of the ANC with regard to the eminent establishment of the MAT is like killing a fly on one’s forehead with a sledge-hammer. The end result is that, in so doing, one runs the risk of causing more harm to the integrity, credibility and image than the intended target. If a mere swipe can remove a fly on the forehead why resort to the utilisation of extreme measures?

The efforts to repeal the Protection of Information Act of 1982, a relic of the apartheid juggernaut are noble, appropriate and desirable. However, the Protection of Information Bill in its current form and content, although it acknowledges the harm of excessive secrecy, falls short on the public’s right to know. Linked to the above, one of the objectives of the Bill is regulating the manner in which state information is protected in a constitutional democracy. In addition, the Bill over-emphasises the protection of information rather than access to information.

The fact that there is a general consensus around the inappropriateness of the Bill and MAT is testament to the fact that there is much to be done to construct a democratic developmental state in South Africa. Developments in the wake of this debate is that there is an appreciation of the significance of information, freedom of thought, freedom of expression, freedom of opinion, national interest, public interest and national security. It is inappropriate to propel one right to a higher pedestal at the expense of the other. One of the positive developments of this discourse is a broader appreciation that the state can become an instrument of coercion. Equally, it can become an instrument of cohesion.

A copious and critical reading of the Bill reveals inopportune whimsical and low-ebb reasoning around national interest. The defining objectives are extremely cryptic and extraordinarily mystifying. Hirschman argues in his book that “one underlying story is familiar from Greek mythology. Man undertakes an action and is successful at first, but success leads to arrogance and in due course, to setback, defeat, disaster. This is the famous Hubris-Nemesis sequence. Punishment for man’s arrogance and overweening ambition is meted out by the gods, because they are envious or because they are vigilant guardians of the existing order with its sacred mysteries.”

Hirschman’s observations and counsel are not premised on finger-pointing but intended to point to humankind the centrality of the catastrophe that may be visited upon arising from success. In a sense, the ANC’s success since the ushering in of a democratic epoch is not sustainable. It is incumbent upon agents of social change and transformation to avoid the emergence of the “Hubris-Nemesis sequence.” The organic intelligentsia in South Africa must unashamedly and unapologetically reverse what Jeremy Cronin calls “the zanufication of the ANC,” which Mondli Makhanya has recently dubbed the “Guptarisation of South Africa which has shaken the ANC’s grip on society.” It would be regrettable if the Bill and MAT were to be passed in their current form.

One can argue that it is not patently clear on the meaning, appropriateness and relevance as to how the bill will promote national security, national interest and public interest in a constitutional democracy such as South Africa’s. It is undesirable that there is an overall view to the effect that South Africa is now degenerating into moral and socio-political turpitude at a supersonic speed. This is portent that could have been avoided. The Bill and the proposed MAT in their current form are social, ideological and political constructs that negate the enhancing of the eruditions and dialectics of the constitutional democracy. The Bill has received national and international opprobrium from the General Council of the Bar, South African National Editors Forum, Business, national and international journalists etc. There is no shred of doubt that the press is the bedrock of any constitutional democracy. It is encouraging that a welter of voices has been raised in protest against the significance and aptness of this draconian legislative proposal in a democratic society. Without any doubt, the Bill is recycling what happened in the apartheid system of governance.

A welter of initiatives and commitments made at the Cabinet/Sanef Indaba in 2001, Minimum Information Security Standards (MISS), Auckland Park Declaration, Promotion of Access to Information Act, 2000 and the Protected Disclosures Act of 2000 amongst others should be integrated to give expression to the national agenda and national interest. In this instance, the parameters of indulgence have prompted legislators to assume a role frolic of their own.

The question remains: What is to be done? The country should not resort to legislation to resolve all problems facing humankind. The ombudsman and press council should be retained to promote media diversity and enhance the efficacy of their useful work. The country must withdraw and redraft both the MAT and Bill to enhance their strategic objective in the national interest. Self-regulation must be strengthened and enhanced.

The perversity, futility and jeopardy theses conceptualised by Professor Hirschman proffers South Africa the possibility to change the paucity of dynamism in the political and socio-economic architecture of the country. What is required is an innovative approach to this challenge which calls for both deconstruction and exploration at every level. The most dynamic, trenchant and organic possibility is to “speak truth to power” after a clear eyed comprehension of why things are going wrong. It should be remarked that in the circumstances a great deal of caution would be required to appreciate that the media is capable of regulating itself with proper checks and balances that will help in dealing with sensitive information. Debate, information, criticism and counter-criticism are effective when we are all compelled to acknowledge and embrace the diverse nature of our society. It requires neither punitive measures nor draconian laws to promote and regulate access to information. If the Bill and MAT are passed in their current form, the ANC’s success may lead to arrogance and in due course, to setback, defeat, disaster.