THE MEDIA APPEALS TRIBUNAL vs. FREEDOM OF THE PRESS AND INFORMATION

The struggle is about power and those in power always want to have more power. South Africa will be the first country to have, in place, a media tribunal if the proposed information bill passes as is. Constitutional law expert Archibald Cox, drawing from the experiences of his country, the United States of America, says a free, self-governing people needs full information concerning the activities of its government not only to shape views of policy and vote in elections, but also to compel the government, its agent, to act responsively and account for its doings.

We come from a past in which we were denied the facts and prevented from communicating with each other in ways necessary for self-government and where the racist Apartheid government had the absolute power of censorship. The press was not free; we could not speak, write, and engage in political discourse and activities without fear of reprisal. After sixteen years of relative press freedom, the ruling ANC, SACP and ANCYL want to take us back to those dark days of oppression. Some government officials who have been engaging in malfeasance and corruption are calling for the establishment of a media tribunal to curb leaks that exposes corrupt activities.

The main question, in view of these adverse developments in the media, is how to deal with government secrecy and deception? One solution could be to encourage disclosure by dissidents within the government even though this could be in breach of confidentiality. Another is to have institutionalized leaks as one of the checks and balances. But according to the proposed Information Bill, whistle blowers and journalists could end up being locked up.

Our Bill of Rights should be converted by judicial interpretation into a government duty to provide the press with access to information. It has been argued that drawing the lines for the Legislative and Executive branches between what must be open and what may be closed is unsuited to judicial determination and even if it were otherwise, lawsuits cannot bring to light activities and information whose very existence is wholly secret. Cox argues that in the end, therefore, the only protection of the people against excessive government secrecy is the people’s own active insistence on disclosure, expressed by their votes and the legislative action of their representatives.

The First Amendment in the US reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of people peaceably to assemble, and to petition the government for a redress of grievances”. This provision demonstrates that freedom of speech and of the press are indispensable prerequisites to other freedoms such as freedom of religion, political rights such as free assembly and free petition for redress of grievances. The Freedom of speech and of the press is also indispensable to self-government.

The “new” South Africa’s constitution was modeled on the US’s among others. Why are the leaders of the “new” South Africa not borrowing from the US this time around? The press is not always right as Cox shows. He writes that there is nonsense accepted as incontrovertible truth and that most people like him reject the notion that the only test of truth is the ability of an idea to get it accepted in free competition. Some falsities may do inestimable harm before truth prevails.

The government must accept foolish things not because they are true or false but because freedom of speech is indivisible. The liberty cannot be denied to some persons and extended to others. The reason is straight-forward: no man, no committee, and certainly no government have the infinite wisdom and disinterestedness accurately and unselfishly to separate what is true from what is debatable, and both from what are false. To license one to impose his truth on dissenters is to give the same license to all others who have, but fear the loss of, power. The risk that harm will occur from the dissemination of false ideas is a lesser danger than the risk that truth will be suppressed by the censor’s power.

By Sam Ditshego