Wednesday, 13 July 2016

South Africa: Legitimacy of Local Elections Jeopardised by SABC Attack on Press Freedom

The embattled South African Broadcasting Corporation (SABC) has found itself on the wrong side of the constitution, the law and press freedom when its maverick COO Hlaudi Motsoeneng, supported by a now defunct board, made the decision to cease broadcasting “footage of destruction of public property during protests”. That is, it made the choice not to broadcast local service delivery protests that have spiralled out of control across the country over the past decade, as well as the more recent riotous protests that have erupted over the ANC’s choice of candidates in various locales across the country in the run-up to local elections in August.

Yesterday, however, the Independent Communications Authority of South Africa (ICASA) issued a legally enforceable order – in terms of the ICASA act – to the SABC leadership to lift its blanket ban on coverage of protests that involve violence and unrest in South Africa because it constituted a ban on an “entire category of conduct”. The judgement stressed the importance of protecting and ensuring the communication of all “matters of public importance”, and especially information that is concerned with the performance of sitting governments. Banning an “entire category of conduct” was not provided for in SABC legislation or the licenses the organisation enjoys. The judgement directly compared the decision taken by the SABC board to Apartheid era censorship.

It is important to note that “service delivery protests”, as they are known, are about much more than simply service delivery. They are an expression of public discontent, not only at failures of central and local government to meet their needs, but also because they feel unheard and invisible to those in power. They feel that there is no other way to call government to account than to take to the streets to make local government “ungovernable” until their voices are heard. Many communities erupt after long periods of pursuing pressing local issues through the conventionally available channels, to no avail.

So the term “service delivery protests” has become a catch-all phrase, and it can sometimes be inappropriate. A case in point, the most recent protests in South Africa have emerged over the ANC’s choice of local candidates for the upcoming local elections in August. Many communities have resisted the ANC’s choice of candidates and have embarked upon violent protests in response to them, insisting that candidates that are preferred by their constituencies be appointed instead. So in this case, service delivery is not what the protests are about at all. It is worth keeping this in mind when one makes reference to service delivery protests in South Africa.  

Peaceful and violent “service delivery protests” have risen steadily under the Zuma presidency. Whereas major service delivery protests were under 20 (i.e. around 13) in 2004, they rose to over a 100 by 2009, and peaked at over 400 in 2012 (note that these are approximate values taken from different sources to be used for relative, approximate comparison with care)***. Although estimates of protests vary they constitute – rightly or wrongly – a critical indicator of political dissatisfaction with local and central government in South Africa. These protests are one of the key means of political expression in a political landscape that is dominated by the majority ANC government. It constitutes the (re)emergence of a culture of political protest that dominated the political landscape under the Apartheid government in the 1980s.

So it is with great irony that the SABC made the choice not to show visuals of violent local protests, claiming that people took to destruction of public and private property when television cameras were present. Led by Hlaudi Motsoeneng, the SABC board have, without seeming to realise it, made an explicitly political decision that is sure to have far reaching political consequences. Indeed, they may inadvertently jeopardise the legitimacy of the upcoming local elections by denying South Africans the right to critically important information; information that may have a direct impact on the upcoming elections. In effect, the SABC made the same decision as the apartheid government made i.e. to censor protests in black townships in order to keep the South African public in the dark about the true extent of political dissatisfaction with the Apartheid regime.

Surprisingly the SABC leadership has claimed that the decision was solely editorial, and judging by Hlaudi Motsoeneng’s response to the ICASA judgement he did not seem to understand the difference between censorship and editorial decision-making. To him they are one and the same, and he stated as much. It is a shocking state of affairs and the SABC has been plunged into turmoil as a result of it, with several senior journalists protesting the decision being faced with disciplinary action, and the resignation of the CEO Jimmy Matthews, whose resignation letter (in which he apologised for not acting sooner) made mention of the “toxic environment” at the SABC.

Moreover, the SABC leadership failed to recognise and acknowledge that the ICASA ruling was not a “recommendation” (as Hlaudi Motsoeneng put it), but a legally enforceable order. His response was confusing on a number of levels, most significantly that he threatened to take the matter to the constitutional court, even though he viewed the ruling as a mere “recommendation”. Were the ruling just a recommendation, it would not be legally enforceable and there would be no reason to involve the courts in the process. Logic is no obstacle to Hlaudi Motsoeneng’s power of reasoning; he reasons in service of his own convictions, however far from reality they may be.

The South African National Editor’s Forum (SANEF) expressed its shock at the SABC’s response to the ICASA ruling. Yet while it is shocking on one level, it is not shocking when one considers the precedent that has been set by the ruling political elite in South Africa. A culture of impunity has arisen amongst politicians and the politically connected, who attempt to intimidate or spin their way out of whatever resistance they may encounter from the media, civil society and chapter nine institutions that are tasked with ensuring that constitutionality is upheld and practised.

The ‘blueprint for survival’ has been written by the president himself, who evaded, misrepresented and attempted to scupper the Public Protectors findings on undue benefits that were wrongly obtained from state expenditure on his rural homestead. The unrepentant and combative Hlaudi Motsoeneng appears to have taken a page out of the president’s book. He has perhaps gone a step further, however, by not bothering to take sound legal advice (or perhaps a second opinion) on an issue that is critical for maintaining constitutionality and political legitimacy in the run-up to local elections.

It is therefore a very serious matter that has arisen, and the SABC’s response has not been well received. According to Ruben Mohlaloga of ICASA, ICASA would take the SABC’s response under legal review and made a determination over what further actions should be taken on the issue. The SABC is at risk of being subjected to a fine, or alternatively – and more seriously - the SABC’s license to broadcast can be suspended or revoked altogether.

To make it absolutely how clearly far off the mark the SABC board and Hlaudi Motsoeneng have drifted, even the ANC itself is outraged over the decision to censor and have called the communications minister Faith Muthambi to account for what is transpiring at the SABC. The National Working Committee (NWC) of the ANC met yesterday (11 July 2016) and today ANC Secretary General Gwede Mantashe denounced and lambasted the act of rebellion taken by the SABC COO and the board. It is worth noting that, quite unusually, minister Faith Muthambi did not attend the meeting of the NWC.

Lastly, in addition to these forces, which have mounted against the SABC leadership, the Public Protector is also investigating complaints against the SABC board. The COO Hlaudi Motsoeneng has already been the subject of a previous investigation by the Public Protector, of which the outcome was essentially that he lied about graduating from high school, had hounded out senior people from the public broadcaster (through suspensions and terminations), had engaged in irregular raises of salaries of his own as well as other staff members, and was not fit to run the SABC (the Public Protectors report was entitled “When Governance and Ethics Fail”). While the court ruled that the Public Protector’s report was legally binding, he managed to dodge the recommended consequences of that investigation when a court ordered disciplinary hearing into his conduct exonerated him and he was re-instated. It is widely speculated that political support from president Zuma and his camp has helped secure Hlaudi Motsoeneng’s position of power.  

This time his luck may run out however. Hlaudi Motsoeneng’s “me against the world” approach is fast becoming an escalating self-fulfilling prophecy, as he embarks upon simultaneous wars on many fronts; even with the ANC itself (or, as some are of the opinion, with that faction within the ANC that are attempting to wrest control of the ANC back from the Zuma faction). His bravado, self-congratulatory “shoot from the hip” approach has not endeared him to many within the political establishment, as his opinions and decisions fly in the face of the liberal democratic constitution that South Africa’s democracy is premised upon.

Yet the key point is this; whether the SABC’s license is revoked or not, as long as the decision to censor protests is upheld by the SABC, the upcoming local election may well be declared invalid as a result of the unilateral decision taken by Hlaudi Motsoeneng and his board, and their refusal to respect the judgement. Either way, the public would be denied critical access to information that is necessary to inform their decisions at the ballot box. It appears as though the SABC board and its dissident COO Hlaudi Motsoeneng have embarked upon an ill-advised trajectory; one that is sure to jeopardise the upcoming local elections, and along with it South Africa’s international standing and the legitimacy of the sitting government with South Africans themselves.

As South Africa limps from one self-imposed crisis to another, it is becoming more and more difficult to maintain the aura of institutional and constitutional superiority that it wielded as a new African democracy. Under the Zuma administration, the erosion of public confidence in central government and local authorities has risen to epic proportions, and the protests are a key political indicator of public dissatisfaction. Ultimately, the SABC’s censorship will not prevent news of protest from reaching the electorate, especially in the era of social media and citizen journalism. It will, however, mark the point at which South Africa takes a significant leap backwards into the realm of political denialism that the Apartheid government squarely located itself within before its collapse became an inevitability. And as surely as bluff and bluster rarely appear unseparated, it is, more than anything, a sign of the weakening of government in South Africa.

**Assessments of service delivery protests vary between sources and different criteria are used to classify them, so the figures accounting for service delivery protests in South Africa are to be regarded as rough approximations of a general trend i.e. the figures for different years are not directly comparable. The figures cited in this article are taken from an Institute for Security Studies media briefing entitled "Community Protests 2004-2013: Some Research Findings" released on the 12th of February 2013 by the Social Change Research Unit, Authors Prof Peter Alexander, Dr Carin Runciman and Mr Trevor Ngwane (see and search for report). Note that the other often used data set is called Municipal IQ (see reference 3 below).

Some additional sources are listed here for the reader:



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