(FXI/IFEX) – The following is a 22 October 2002 FXI statement: FXI welcomes changes to Broadcasting Amendment Bill The Freedom of Expression Institute (FXI) welcomes most of the changes made by the South African Parliamentary Portfolio Committee on Communications to the controversial Broadcasting Amendment Bill. The changes were made during deliberations from 15 to 18 […]
(FXI/IFEX) – The following is a 22 October 2002 FXI statement:
FXI welcomes changes to Broadcasting Amendment Bill
The Freedom of Expression Institute (FXI) welcomes most of the changes made by the South African Parliamentary Portfolio Committee on Communications to the controversial Broadcasting Amendment Bill. The changes were made during deliberations from 15 to 18 October 2002, following public hearings where numerous organisations criticised the Bill for attempting to transform the South African Broadcasting Corporation (SABC) from a public broadcaster to a state broadcaster by increasing its accountability to the Minister of Communications.
The Bill will be debated in Parliament’s national assembly on Wednesday 23 October, and should be signed into law by the President by the end of 2002.
These changes are a major victory for freedom of expression and editorial independence, and underline the fact that the legislature is willing to act independently from the executive in ensuring the constitutionality of draft legislation. The FXI participated in both the hearings and deliberations on the Bill, and has found the process a rewarding one insofar as it was both inclusive and participatory.
The Bill was passed by the Portfolio Committee on Friday 18 October with the approval of all political parties, save for the Democratic Party which – while supporting many aspects of the changes – abstained from supporting the Committee report. The Bill underwent radical changes during the Portfolio Committee deliberations, with key sections being completely re-written. The FXI congratulates the Portfolio Committee for the way that it negotiated the politically loaded aspects of the Bill, and carved out an alternative that – while not satisfying all concerns – is light years away from what it was when it was gazetted.
One of the most controversial sections of the Bill involved the deletion of a clause guaranteeing freedom of expression and journalistic, creative and programming independence, which was later reinstated in the most controversial sections of the Bill, namely section 6. New clauses were added to this section, placing an obligation on the SABC to encourage the development of South African expression by providing a wide range of programming that, amongst other things, advances the national and public interest. In this respect, there was a disagreement in the Portfolio Committee about the inclusion of the words “national interest”, with the majority view being that one way of satisfying both the national interest and public interest camps was to include both terms.
Also in terms of this clause, the SABC Board is no longer required to submit a range of policies to the Minister of Communications, but rather to notify them to the communications regulator, the Independent Communications Authority of South Africa (ICASA). The development of these policies must involve public participation, and furthermore, the SABC must provide suitable and sufficient means for regular input of public opinion and give these opinions due consideration; also a new section which the FXI and the Congress of South African Trade Unions (COSATU) argued for during the hearings and the deliberations.
Therefore, it was agreed that the version of section 6 will read as follows:
6. The following section is hereby substituted for section 6 of the principal Act:
Charter of Corporation
6. (1) The Corporation must comply with the Charter as outlined in this part.
(2) The Authority must monitor and enforce compliance with the Charter by the Corporation.
(3) In terms of this Charter, the Corporation, in pursuit of its objectives and in exercise of its powers, enjoys freedom of expression and journalistic, creative and programming independence.
(4) The Corporation must encourage the development of South African expression by providing, in South African official languages, a wide range of programming that –
(a) reflects South African attitudes, opinions, ideas, values and artistic creativity;
(b) displays South African talent in education and entertainment programmes;
(c) offers a plurality of views and a variety of news, information and analysis from a South African point of view;
(d) advances the national and public interest.
(5) (a) The Board must prepare and submit to the Authority not later than three months after the date of conversion, policies that will ensure compliance with the Authority’s Code of conduct as prescribed and with the licence conditions and objectives contained in this Act including:
(i) news editorial policy;
(ii) programming policy;
(iii) local content policy;
(iv) educational policy;
(v) universal service and access policy;
(vi) language policy;
(vii) religious policy.
(b) The Corporation must notify the Authority in writing of any amendments to the policies referred to in paragraph (a) as soon as reasonably possible.
(6) The Board must ensure that there is public participation in the development of the policies referred to in subsection (5) by inviting and considering public comment on draft policies and by other means.
(7) The Corporation must provide suitable means for regular inputs of public opinion on its services and ensure that such public opinion is given due consideration.
(8) The Corporation must develop a Code of Practice that ensures that the services and the personnel comply with –
(i) the constitutional principle of equality and the equitable treatment of all segments of the South African population;
(ii) the constitutional requirement of equitable treatment of all official languages;
(iii) the rights of all South Africans to receive and impart information and ideas;
(iv) the mandate to provide for a wide range of audience interests, beliefs and perspectives;
(v) a high standard of accuracy, fairness and impartiality in news and programmes that deal with matters of public interest.
Unfortunately, a proposal that the SABC’s Memoranda and Articles of Association be subjected to a public process through the Portfolio Committee process was not carried, with the Minister still being required to determine these documents.
The references in the original Bill to the Board having to ensure “..the exercise of accurate, accountable and fair reporting” was dropped, with the SABC now being required to develop a Code of Practice – rather than a Code of Conduct, as per the original Bill – that ensures that its services and personnel comply with, amongst other things, … “a high standard of accuracy, fairness and impartiality in news and programmes that deal with matters of public interest”. Numerous other significant changes were made, including dropping a proposal for the establishment of separate management boards for the public services and public commercial services, to be appointing from the existing Board members by the Minister; these have been replaced by sub-committees of the Board, with the powers and functions being determined by the Board. These changes further erode the controls the Minister would have exercised in terms of the original Bill.
Another section of the Bill that proved to be controversial involved the establishment of two regional television stations, to broadcast in all South African languages, except English and Afrikaans, as these languages already receive substantial coverage on existing SABC television services. The establishment of these stations was controversial in that it threatened to usurp the constitutionally guaranteed role of the Independent Communications Authority of South Africa (ICASA) to decide on the process of licencing regional services, as the services would be establishment through legislative fiat rather than through a regulatory process. According to South Africa’s constitution, national legislation must establish an independent authority to regulate broadcasting in the public interest, which should take sole responsibility for the licencing process. Another problem was that the services would have fallen directly under the control of the state, which would have undermined the whole basis of independent broadcasting in South Africa.
The Portfolio Committee decided that these services would now be run by the SABC, and would therefore enjoy the same guarantees of independence and accountability requirements as the Corporation. In order to resolve the constitutional questions around the establishment of these services, the Committee decided that within six months of the commencement of the Amendment Act, the SABC must apply to licence it to provide regional television services broadcasting in the languages of Sepedi, Sesotho, Setswana, isiSwati, TshiVenda, Xitsonga, Afrikaans, isiNdebele, isiXhosa and isiZulu, on an equitable bases.
The Portfolio Committee also decided that the regional services provided by the SABC may draw revenues from grants, donations and sponsorship and must receive grants from the state. The exact amount still has to be announced, but the Department of Communications has indicated that the grants will be substantial. However, ICASA must determine the extent to which these services may draw from advertising, as the impact of these services on the access to adspend of other television stations had not been established.
These developments are welcomed by the FXI as a major advance for independent public broadcasting in South Africa. In effect, for the first time in South Africa’s history, public broadcasting will be state funded, something that the FXI has long argued for, even when many had given up hope of such funding being forthcoming.
The Portfolio Committee has also stated that there is no intention to privatise any of the SABC’s services, and to ensure that this is the case, has removed the phrase “while the state is the sole shareholder” in the Bill.
The commitment of the Portfolio Committee to release the SABC of the stranglehold of commercial interests – 77% of the SABC’s income is from advertising – and to grow non-commercial public broadcasting is a development of international significance, as it means that South Africa is one of the few countries in the world where public broadcasting is growing rather than shrinking.
