Tuesday, September 14, 2010

The Constitution v Media Tribunal


The ANC’s mooted legislative initiative to create a Media Appeals Tribunal is undeniably causing a furore. That is understandable given the historic background of muzzling the media during the apartheid era.

History has shown that authoritarian regimes often come about in a creeping way. Typical indicators are the following: First, the executive tightens its grip over the free flow of information, usually employing the following tools: muzzling a free press; blurring the state goals of national security and public safety and letting national security override the public interest. Second, a too close ideologically-driven symbiosis of the executive and legislature often leads to legitimising an excess of power and curbing of fundamental rights. Finally, the role of prosecutors and the judiciary is marginalised more and more. Weak constitutional systems that tip the balance of power towards parliament or the executive can even enhance the process.

This makes clear why a parity of power between the different branches of state power as well as a vigilant but fair press is the heartbeat of any thriving democracy that cherishes constitutionalism. It is against this backdrop that one should evaluate the Protection of Information Bill that would allow the executive disproportionate scope for classifying information as secret and the envisaged MAT.


The impression one gets is that the proposals about MAT have not adequately taken the constitutional constraints with regard to this endeavour into account. Not only the practicality of such a tribunal is open to question; the constitutionality of such a tribunal within the framework of the prescribed separation of powers is highly problematic. It could also too easily be turned into a censorship instrument.

The quality of a democracy undeniably depends heavily on quality reporting of the press. The positive effect of the debate is that a greater public awareness has been created about the importance of responsible and fair reporting as well as the dangers of censorship. It would seem that the most viable option at this stage is that the self-regulatory system should be improved. More stringent penalties (like fines) have been suggested and furthermore that corrections, retractions, and apologies should be printed more prominently.

By Loammi Wolf - read the full piece here (there are many interesting pieces of information, so I highly recommend a full read).