Have our leaders read the Constitution?

“Press holds rights in trust for citizens”

This year as we celebrated Human Rights Day it was sad to note that our rights to freedom of expression and a free press were under attack. When our publicly elected leaders attack the media and calls for boycotts, we can rightfully ask whether they have read the South African Constitution. Whether they fully understand the importance of the news media to a free and open society and the inalienable rights of human beings as set out not only in the Constitution and the Press Code but also in the UN Declaration of Human Rights to which South Africa is a signatory.

We have just celebrated Human Rights Day on 21 March in commemoration of the Sharpeville massacre on the same day in 1960, an event prominently covered by the foreign media and at the time triggering worldwide condemnation of the Apartheid regime.

However well covered by the foreign media, our own domestic media at the time was less free to do so. In later years however, the South African news media has been instrumental in unearthing the full truth about the crimes of Apartheid and more recently the massacre at Marikana, not to mention the numerous cases of police brutality, corruption and social ills that keeps plaguing democratic South Africa.

As we reflect upon how far South Africa has come since the days of politically enforced and legally formalised suppression of basic human rights, it is well worth taking note of the inter linkages between the inalienable rights of human beings as set out in the South African Constitution of 1996, the UN Declaration of Human Rights of 1948 and the current South African Press Code as adopted in 2013.

This as the freedom of the news media has increasingly come under attack, from publicly elected leaders who seem to have forgotten the oath they have undertaken to uphold and protect the very same values that they now oppose.

The preamble of the South African press code states:

“The press exists to serve society. Its freedom provides for independent scrutiny of the forces that shape society, and is essential to realising the promise of democracy. It enables citizens to make informed judgments on the issues of the day, a role whose centrality is recognised in the South African Constitution”.

Press Code

As such the Press Code clearly emphasises the role that the news media play in the upholding and realisation of the values of the Constitution, in the service of a democratic society.

The Press code does not stop there, it also cites section 16 of the Bill of Rights as set out in the South African Constitution that states that
“Everyone has the right to freedom of expression”, which includes:
a) Freedom of the press and other media;
b) Freedom to receive and impart information or ideas;
c) Freedom of artistic creativity; and
d) Academic freedom and freedom of scientific research.

This is also recognised in article 19 of the UN Declaration of Human Rights.

In recognising and clearly specifying the rights to freely impart and receive information, the Press Code also specifies the responsibilities it has to serve society and its citizens through clearly defined impediments on the rights to freedom of expression and dissemination of information by directly prohibiting expression that amount to:
a) Propaganda for war;
b) Incitement of imminent violence; or
c) Advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Now, in order to realise both its rights and responsibilities the Press Code further states that “The press strives to hold these rights in trust for the country’s citizens; and it is subject to the same rights and duties as the individual. Everyone has the duty to defend and further these rights, in recognition of the struggles that created them: the media, the public and government, who all make up the democratic state”.

As such the press puts itself up as a guardian of these rights and holds them in “trust for the country’s citizens”, and clearly state that the press is subject to the same rights and duties as any individual, journalist or non journalist, and that every citizen has a duty to not only defend but also further these rights. It also makes an implicit statement that it does so in recognition of a time when South Africa was not a democracy and a time when South Africa did not have a Constitution that recognised the inalienable rights of human beings.

Ethical Code of Conduct

As much as the Press Code emanates from a self-regulatory framework and as such is an ethical code of conduct and not legally binding the preamble sets out a clear legal framework by citing the Constitution. As citizens of South Africa we are beholden to our Constitution, including our Government and any public official. As such it is strange to see the persistent attacks on the news media that we have witnessed in later years from our current leadership, not only the ruling party but also the opposition parties. When the African National Congress (ANC) proposed a statutory Media Appeals Tribunal to deal with cases of perceived unethical journalism under the auspice of protecting the public, it can be read as little else than a smoke screen for enforcing tighter restrictions on the media. And when the leader of the Democratic Alliance (DA) and Premier of the Western Cape, Helen Zille, propagates for a boycott of the Cape Times, we can rightfully ask questions about our elected leaders’ understanding of not only the Press Code but the South African Constitution and the values it espouses and the rights and responsibilities it legally imposes.

While the Press Code is based on a self regulatory framework and however noble this might seem there are sections of the press code that that leaves little room for interpretation and where they directly intersect with the law and that is on the account of the inalienable rights of human beings to freedom of expression as well as protection from propaganda for war, incitement of imminent violence and/or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

So when the ANC, DA or any other political party or publicly elected leader calls for, or proposes measures, that infringe on these rights they find themselves in contravention of the South African Constitution and the values that they have taken a direct oath to uphold and protect. It makes us query whether they have indeed read the Constitution, let alone understood it.

Co-option & Political Alignment

An attack on the media by any citizen would be justified if the news media did indeed find themselves in contravention of the Constitution, and by extension the Press Code. It would indeed be our duty and we would value any such intervention by our elected leaders. Whilst we have seen a few cases in which individual journalists and news outlets have indeed violated the Constitution and the Press Code as far as hate-speech is concerned these cases have subsequently been dealt with. However, we have yet to experience any news media outlet in South Africa taking on a direct propaganda for war, incitement to violence or imminent harm based on race, ethnicity, gender or religion as an editorial policy. As such, the critique brought forward from the side of the ANC as well as the DA seems unjustified and little else than attempts at having the news media play a politically aligned or co-opted role at the worst; or maybe at best as as an ill-thought through attempt at political point scoring.

If citizens are to enjoy their basic rights we do not only need a Constitution that can be tested against these rights as to how well it protects and upholds them, we need other societal institutions, including our Government and elected leaders, to monitor and uphold these rights, and to make sure that these becomes part of the broader fabric of our society and informs the way in which we interact with each other. It would seem our current leadership is completely ignorant as to how to do this.

If we are to be able to enforce the values of the Constitution and call upon all citizens, including our elected leaders to do so, we need a free press. We need a press that is free to debate various ideologies, policy options and viewpoints, a news media that not only hold our leaders accountable, but maybe more importantly fulfils its didactic role of educating the news media, the public and government alike on their duties to defend and further these rights.