The limits of lawfare, as a way of fixing the public broadcaster, must be understood, writes Eusebius McKaiser.
We have started to rely quite slavishly on lawfare to settle important public disagreements. The latest lawfare is of course playing out at the SABC.
First, the Chief Operating Officer, Hlaudi Motsoeneng, insists that he will challenge, all the way up to the Constitutional Court if necessary, the recommendation of regulator ICASA that it, the SABC, should reverse the editorial decision to not show footage of violent protests.
Second, there is the impending lawfare of the so-called SABC 8, journalists at the SABC who have stood up against what they see as censorship at the corporation, and allegedly unconstitutional attempts by management to interfere with their rights and duties as journalists.
Constitutional lawyers will be having a field day arguing whether or not the actions of SABC bosses are lawful or unlawful, and these legal battles will be grounded in constitutional law.
It is perhaps regrettable that lawfare has become the norm. On the one hand, the very point and meaning of constitutional supremacy makes it perfectly acceptable to go to the courts to test the exercise of public power.
In that sense, lawfare shouldn’t be seen as an inherent bad. After all, any exercise of public power that isn’t consistent with either the constitution or particular pieces of legislation like the Broadcast Act, must be set aside.
On the other hand, our legal system is designed to have winners and losers. That’s why it is called an adversarial system of law. And the consequence of this reality is that the many non-legal challenges of the SABC, which go to the heart of the public broadcaster’s actual woes, could never be settled wholly by any court of law. The limits of lawfare, as a way of fixing the public broadcaster, must be understood.
But, before analysing the non-legal challenges, it’s important nevertheless to get a grip on the central constitutional challenges. In relation to the ICASA ruling, the nexus legal question that will have to be settled by a court of law is whether or not the right to access information is violated when a blanket editorial policy is enacted to the effect that footage of violent protests should not be broadcast.
ICASA has already drawn on excellent case law to ground its conclusion that the editorial policy of the SABC is unlawful. It is not the business of news editors to determine how viewers will or might react to news that is unpleasant, including imagery of violence.
Two additional legal hurdles for the SABC are the facts that, firstly, the policy is couched in absolute terms (rather than being flexible and subject to rational exercise of discretion), and it blocks the flow of information before you and I have been able to see it, a kind of effective pre-publication censorship model, which clearly isn’t in line with the values of freedom of expression and media freedom enshrined in the constitution.
That said, I think an excellent constitutional lawyer might have some, even if limited, room to push back against ICASA. While the space doesn’t exist for me to explore fully here the range of opposing legal arguments that are available, it is clear that ICASA could have done much more to analyse the downside of constraining a media house with such a strong directive about what content choices it needs to make.
The truth is that discretion is exercised daily, and with an impossible amout of potential information to publish or broadcast, there also needs to be limits on the level of direction allowed from the regulator.
And the weakest argument from activists, legally, is one that has not been made with adequate empirical proof as yet: demonstrating how it is that the right to vote will be undermined unless the SABC shows images of violent protests. It might be true, but lawfare means we now enter the law of evidence, rather than conjecture.
As for the SABC 8, the issues are as complex, legally speaking. Firstly, the SABC, if it wanted to be a bully, could simply slowly draw out legal processes specific to the individual suspensions. The SABC isn’t responding, in law, to the SABC 8 as a cohort. This is not some kind of class action suit.
It might therefore be more sensible, from a legal strategy viewpoint, if any employee who feels that they are being constructively dismissed or that some other labour rights of theirs have been violated, go the route of fighting for these rights through dispute resolution mechanisms that specialise in labour law.
It will be hard to hook the labour grievances of workplace bullying, censorship, disagreement with editorial policy etc., to classic constitutional arguments. And, by the way, that is not the end of the world.
We sometimes fetishise constitutional law in public debate. The truth is that other sources of law, like administrative law and labour law, are enormously powerful ways through which one can insist on justice. It is not only grand constitutional arguments that can help one win important cases, even if in reality constitutional issues are at play.
In the final analysis, however, lawfare might be useful but has its limits. The truth, of course, is that the SABC needs complete organisational renewal, not unlike the ANC itself. The rot runs so deep that a legal victory here or there for this or that employee, or for or against a particular editorial policy, will have no transformative impact.
The SABC has a legacy problem now. The norms, policies, and organisational culture are not conducive to its fulfilling its mandate as a public broadcaster. And constitutional victories, although helpful, cannot fix these horrible non-legal truths about the place.
A strategy that needs to accompany any legal action is one that should play out in the public space. Not enough work has been done to galvanise support for the SABC 8 among members of the public. This strategic mistake of not engaging the public effectively is precisely the result of excessive lawfare as a substitute for good old bottom-up activism. We need a range of strategies and tactics to save the SABC yet.
* Eusebius McKaiser is the best-selling author of A Bantu In My Bathroom and Could I Vote DA? A Voter’s Dilemma. His new book - Run, Racist, Run: Journeys Into The Heart Of Racism - is now available nationwide, and online through Amazon.
** The views expressed here are not necessarily those of Independent Media.