SABC is flirting with ‘insult laws’

A NEW and serious censorship dimension has opened up at the South African Broadcasting Corporation, which by its recent conduct shows it supports the institution of insult laws, the notorious laws that protect presidents and heads of certain government departments in many African countries from criticism.

These laws are regarded as the scourge of African journalism and many countries elsewhere. They are widespread. In many countries on the continent editors and journalists are regularly arrested, charged and jailed under insult laws — perhaps the most frequent charge brought against journalists in Africa.

Best known in SA as an editor who has suffered greatly under these laws is Fred M’membe of the Post in Lusaka, Zambia, who has probably lost count of the number of times he has been thrown into jail for “insulting” the president of Zambia or being “in contempt of parliament”.

SA does not have insult laws, though it has common law provisions for charging citizens with the closely related offence of criminal defamation — fortunately not used in the past 30 years in our courts.

An attempt was made by former prime minister JBM Hertzog in the 1930s to enact insult laws in SA to protect the German ambassador who was then under sharp attack by the country’s English-language press because of the conduct of the Nazi regime in Germany. The press objected strongly and Hertzog reluctantly dropped the plan.

The result is that South Africans have been free of these iniquitous laws. But now there appears to be an attempt by the SABC to act as if those laws are in force and as if it has to comply with them.

“Insult laws” are described by the Washington-based World Press Freedom Committee as “one of the leading pretexts for restricting free speech, free information, free commentary and opinion, the basic elements that make up freedom of the press”.

In its booklet, Hiding From The People, the committee says: “Along with the equally chilling criminal defamation laws they give special protection from so-called insult, offence, outrage, contempt or disrespect to the chief of state and other officials — high and low — public institutions or bodies like the parliament, the police or the armed forces, symbols of the state like the flag or the coat of arms, and the state or nation themselves. They also facilitate efforts to stifle journalists reporting allegations of more serious, official misconduct.

“These laws make it a crime to offend the ‘honour and dignity’ of public officials, state offices and national institutions. There are no objective standards, and leaders themselves, often notoriously thin skinned, determine in the first instance whether they feel ‘insulted’ or offended.”

The committee conducted a study of more than 90 countries and found that such laws “exist in every major region and are widely used as a legal basis for suspending or banning news media, jailing journalists and fining the press”.

The withdrawal by the SABC of the “unauthorised” documentary on President Thabo Mbeki was clearly motivated by insult-law considerations, when one reads that CEO Dali Mpofu canned the 24-minute production because it was defamatory and that it was unbalanced (withdrawal-speak for inaccurate), classic descriptions under those laws.

But the concept of insult-law considerations coming into play was voiced by Thami Mazwai, a member of the SABC governing board, in his article on these pages, Sense in SABC’s doccie decision (June 23) defending the decision to withdraw the documentary.

Mazwai wrote that the SABC, “by virtue of being the public broadcaster, must be careful how it projects the office of the presidency. This office is more than the person of President Thabo Mbeki … in business parlance, it is the goodwill on the balance sheet of SA Inc”.

“It is for this reason that countries, for instance, those in the developing world, have laws to protect the integrity of the president. This is not about protecting the person, but it is about the integrity of the highest office in the land”. He said it was possible in the developed world to separate the person from the office but not in the developing world, where they are lumped together and if the president is corrupt, then the country is damned.

One reading of that statement is that Mazwai believes it would be inappropriate to expose the corruptness of a president. This is the man responsible for media matters on the SABC board charged with upholding freedom of expression and editorial professionalism.

Yet he appears to be totally unaware of an extensive campaign in democratic countries to have these laws scrapped throughout the world.

Mazwai’s perception of differences between developed and developing countries, which allow the latter to entertain insult laws to protect their presidents, further shows up his ignorance in this field.

He is clearly unaware some African countries such as Kenya, Egypt and latterly Ghana have scrapped insult laws and that the campaign against these laws is being run by international, regional and local media and civil rights organisations. Among them in SA and the region are the South African National Editors’ Forum, the Freedom of Expression Institute and the Media Institute of Southern Africa. Indeed, his own SABC radio news services gave prominence to the launching of the campaign in the southern Africa region in Lusaka last year.

The extent to which Mazwai’s thinking has permeated the top editorial controllers at the SABC is illustrated by their bans from radio and TV programmes of several commentators and analysts, two from Business Day — all known to take a critical view of Mbeki’s government. These bans fit precisely the purposes of insult laws — to stop criticism of the president and government.

The objection that the Mbeki “doccie” is defamatory appears to be a smokescreen raised on technicalities. In any event, the SABC has given Mbeki the opportunity of suing by showing it to a selected audience of editors and journalists. One of them, the University of the Witwatersrand’s Caxton Professor of Journalism and Media Studies, and former Weekly Mail

The legal opinion that the SABC trotted out appears also to have taken no account of the constitutional provision that our courts have the power to take foreign law into account in interpreting our bill of rights, which covers freedom of the media (Clause 39 (1) (c)). If Mbeki brought a claim for damages against the SABC, which is highly unlikely, the defence would press that constitutional clause and cite the US case of Sullivan vs New York Times, where the US Supreme Court laid down that public officials are exempt from libel laws except in two circumstances, which are unlikely to apply to this documentary.

All of this shows, in addition to the desire to give insult-law protection to the president, a tragic lack of journalistic professionalism at the top level of the SABC.

Louw, editor and publisher of weekly current affairs newsletter Southern Africa Report, is also the African representative of the World Press Freedom Committee and deputy chairman of the South African Chapter of the Media Institute of Southern Africa.

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SABC is flirting with ‘insult laws’