What has come to be known as ‘Black Wednesday’ commemorates the events of 19 October 1977 when, in the midst of a brutal campaign to quash dissent after the previous year’s student uprisings, then justice minister Jimmy Kruger banned three publications on the pretext that they were disseminating ‘inflammatory’ material that threatened national security. The World, the paper that published Sam Nzima’s iconic photograph of a dying Hector Pieterson, as well as its weekend edition and a religious publication run by the late Beyers Naude, Pro Veritate, were all muzzled by the state, and their editorial staff harassed and jailed.

We’ve come a long way from the dark days of apartheid-era censorship. Our current ruling party, which helped usher in a progressive Constitution that gives a prominent place to free expression and media freedom, is not in the business of banning outspoken publications. At least not yet. But we are still a long way off being able to say we have a media sector which satisfactorily serves everyone who lives in this country. There’s a lot wrong with the media, to be sure. Both the broadcasting and print media sectors are highly monopolised markets, most media is still published/broadcast in either English or Afrikaans, ignoring other languages, and the high cost of data prevents the majority from having any meaningful access to the internet. Media isn’t always distributed equitably in geographic terms, and access to the media is often prohibitively expensive. So, where you live, how much money you have, and which languages you speak, will determine if and how you get to enjoy the media.

On top of these pressures on the media audience, media producers don’t have it all that easy. In the early 2000s South Africa was among the 30 freest countries for the media according to the Reporters Without Borders World Press Freedom Index. The political climate has changed since then and our position has dropped. Today we rank number 39, having clawed our way back from position 52 in 2013.

Meanwhile, rhetoric from the ruling alliance has in recent years become increasingly hostile to the press. There have been a raft of largely unsubstantiated attacks on the independent media for being out of hand, unprofessional, sensationalist, and consistently getting facts wrong. The press, it is often alleged, is increasingly assuming the role of the opposition and has an anti-ANC agenda, though such arguments tend to ignore media houses which are sympathetic to the government as well as the ANC’s own cheerleading media machine which is bankrolled by the Gupta riches. They also ignore the findings of various different research efforts performed independently by both academics and media monitoring agencies, which nullify the claims that the media is overtly oppositional and unfairly negative toward the ANC in the majority of its content. It is true that stories of maladministration and corruption are commonplace in the news, but only because these stories are in the public interest and the press is duty-bound to report on them. The various crimes and abuses by the government and the private sector keep investigative journalists in this country very busy, but this does not automatically indicate an oppositional stance on the part of the press.

Coupled with denunciations of the media have been growing calls for tighter press regulation, and for this to be backed up with more effective, harsher punishment. And then came the ANC’s national general council earlier this month, where the party again expressed the need for a Media Appeals Tribunal. Those who advocate for a Media Appeals Tribunal claim newspapers get away with reckless and defamatory stories and that journalists must be made to be more responsible in their reporting. But, taken together with the ruling party’s tendency to read conspiracy into every critical voice, it is clear that this has very little to do with improving journalistic ethics and a lot to do with silencing dissent.

This is not to suggest that the media is always innocent, and that editors and journalists don’t cock up spectacularly from time to time. Even the best journalists can get their facts muddled on occasion, and this is especially so as newsrooms come under increasing pressure and painful cutbacks are made, leaving media workers overstretched and underpaid. It’s no easy job for investigative journalists to write the important stories they write, to expose corruption and abuses of power, when they are met with obfuscation and doors slamming in their faces at the best of times.

That said, despite the challenges journalists and editors face, they should be held to account for their mistakes and for breaches of professional ethics, and by and large they are. ANC spokespeople keep repeating the same line in reference to the Press Council of South Africa (PCSA), and that is that “self-regulation is not working”. There are two problems with this oft-repeated assertion. First is that the PCSA is not a self-regulatory system. It is an independent co-regulatory one. That various different ANC officials get this fact wrong over and over again reveals a dearth of understanding within the party of how this particular regulatory system really works. The second part of this assertion, that the system is not working, is problematic in that it is never backed up with any empirical evidence by the ANC to prove that it is correct. It is not correct. Inconvenient as it may be for the ANC, the PCSA system is working, and working well.

As media lawyer Dario Milo has said, the jurisprudence of South Africa’s Press Council has improved over the last few years, and now “the standard approach if there’s been a front-page story that is inaccurate and defamatory is to order a front-page apology, so there have been very prominent front-page apologies in the last few years where the media get it wrong and are ordered to apologise by the ombudsman”. In addition, says Milo: “A prominent and prompt apology mitigates any damages claim substantially, so it’s an incentive to the media where they get it wrong.”

In an open letter to the ANC NCG, PCSA director Joe Thloloe offers a demonstration of how the press ombudsman system has improved its functionality in recent years. Sadly, the hard facts of the efficiency of the Office of the Press Ombudsman, the remarkable progress it has made in improving its own systems within a short space of time, and the significant increase in public confidence and support for the PCSA, is entirely ignored by the ANC. The ANC displays profound audacity and hypocrisy here because it lambasts the investigate press for getting its facts wrong and disseminating overly negative utterances on a regular basis against the ruling party, when the ANC itself offers precisely that kind of treatment to the PCSA.

But more than that, there are three factors which bog down the continual resuscitation of the Media Appeals Tribunal debate in irrelevancy. First, there are various different media regulatory bodies and institutions within the country, many of which if they functioned properly could contribute positively to the meaningful democratisation of the media landscape. These include the Independent Communications Authority of South Africa, the Broadcasting Complaints Commission of South Africa, the SABC, and crucially the Media Development and Diversity Agency. Without going into the details, serious questions have been raised around the efficacy of some of these bodies. And yet none of them have received the severity of scrutiny from the ANC the PCSA has endured. Why not? Could it be because these institutions, despite their potential to foster a democratised media, do not oversee the accountability of that sector of the media which produces the most significant cache of investigative journalism, and so more regularly exposes government failings? It is difficult not to wonder whether the ANC’s preoccupation and incessant fixation on the PCSA is motivated by political interests.

Second, the ANC continually frames the question of press accountability within the topic of media diversity and transformation, which is problematic. The media in South Africa is not diverse enough, and the media market is highly monopolised. That much is true. But that problem cannot be resolved by improving or instituting a system of post-publication accountability, whether in the form of a Media Appeals Tribunal or not. So, in this case, the proposed solution does not have any symmetry with the problem.

Third, the ANC (and Lumko Mtimde in particular) continually refer to the Press Freedom Commission (PFC) with high regard – the investigation which resulted in various changes to the press accountability system – but ignore the public submissions which were gathered during that process. The PFC was a remarkably participatory process by South African standards, which by the way, is in keeping with the principles of the participatory democracy South Africa ought to be. The number of public submissions gathered by the PFC exceeded the number gathered in the drafting process of most laws in this country. By far the largest majority of submissions in that process preferred a system of self-regulation for the press, and were decidedly against a parliamentary investigation into a Media Appeals Tribunal, let alone the actual establishment of such a body. Here, the ANC utterly ignores the voices of the media audience and the participatory public, which is a great pity.

The media sector does not operate in a vacuum, and is subject to the political conditions of the over-arching environment of increasing paranoia on the part of the ANC and the state. Much of the public input in the PFC process expressed the concern that making the media accountable to Parliament through a Media Appeals Tribunal is bound to open the doors to greater political interference and compromised editorial standards, especially when one takes into account the open contempt expressed by certain politicians towards the press, the undermining of independent institutions and the heightened sense of paranoia on the part of the state – paranoia that is exemplified, to name one example, by the actions of the country’s spies.

Take, for instance, the decision by the State Security Agency (SSA) to investigate claims that Thuli Madonsela, Lindiwe Mazibuko, Julius Malema and Joseph Mathunjwa were spying for the Central Intelligence Agency, based on the fanciful claims of a dubious blog. This shows just how out of touch and insecure our spooks, and those in power whom they protect, have become. Another example: at the weekend, the Sunday Times reported that SSA officials have warned Parliamentary staff that “certain NGOs (nongovernmental organisations), specifically Right2Know, were known to be agents working for foreign governments”. In an interview with the Right2Know Campaign, the Sunday Times alleged that a connection to the US government was specifically mentioned. The allegation is of course, laughable, but again indicative of how the state’s intelligence services are pummelled into acting as servants of political forces and interests. The Right2Know Campaign is a social justice movement made up of predominantly community based grassroots activists, not spies. The Right2Know’s responding statement reads: “For the curious and the paranoid, R2K’s audited financial statements are published on our website, as are our funders and all key organisational documents, which is more than can be said for the SSA.” And again, this is another case of hypocrisy. Remember, a former state security minister accused the Right2Know Campaign of working for foreign spies: the Spy Cables scandal revealed by Al Jazeera earlier this year, among other things, showed that our own security services are at times willing to cooperate with foreign spy agencies in ways which, under scrutiny, a great number of South Africans are likely to find unacceptable. So while the SSA laughably accuses social justice movements of collaborating with foreign governments in dodgy dealings, it ought rather to point that finger at itself.

To further consider the broader context in which ANC pressures on the media are germinated: five years ago the Right2Know Campaign was launched in response to a now infamous piece of legislation – the Secrecy Bill (you can read a plain-language summary of what’s still wrong with the Secrecy Bill here). A watered down version of the bill sits on President Jacob Zuma’s desk awaiting his signature. If signed into law, it would give sweeping powers to state security to classify information based on a vague notion of ‘national security’ and without public scrutiny. It would criminalise not only those who leak classified information, but even those who possess it. Among the Bill’s many other problems is the fact that it lacks a public interest clause and offers only limited protections to whistleblowers. Investigative journalists and others whose duty it is to expose corruption could also face absurd sentences of up to 25 years if they are found to be in possession of classified information. Although the president’s hand has so far been stayed, presumably due to public pressure, the threat of Zuma signing the Bill continues to loom.

The Secrecy Bill is not the only piece of draconian legislation in the pipeline. This year saw widespread opposition to the Film and Publication Board’s new draft regulations for online content that threaten to impose a complex, bureaucratic online censorship regime which would have an impact on anyone making use of the internet. The text of the draft regulations is truly Orwellian in substance and scope, and envisages a system of online policing so insanely impracticable that it might as well have been dreamt up by Kim Jong-un (for a full assessment of the heinous censorship proposed by these regulations read Julie Reid’s analysis). While it’s tempting to see these regulations as the product of hand-wringing conspirators determined to control our online lives, the more reasonable assumption is that this a matter of bureaucratic overreach and a profound lack of understanding of both the ethos of the internet and the way the web works. Thankfully, it is unlikely that the regulations will ever pass constitutional muster, but the mere fact that something so crazy was ever put to paper is worrying enough, and telling of the disregard some of our policy makers have for free expression. And to add to all of this, a Cybercrimes and Cybersecurity Bill has recently been put forward, with worrying echoes of the Secrecy Bill.

We’ve also, in recent years, witnessed the tragic farce of epic proportions unfold at the SABC. The sorry state of affairs at the public broadcaster, which dominates the country’s airwaves, has plunged to new depths thanks to the efforts of chief operating officer Hlaudi Motsoeneng. His calls for 70% of the news aired by the SABC to be sunshine stories, and his bizarre claim that running stories on crime encourages young people to become criminals, tell us that our once proud public broadcaster is run by incompetents and has reverted to being a mouthpiece of the state.

The SABC, so long a propaganda organ of the apartheid regime, was transformed in the 1990s into a broadcaster that provided critical public interest programming, reflected views from across the country’s diverse population, and delivered hard-hitting news and investigative reporting that exposed corruption and injustice. We’ve ended up with a broadcaster that has drifted miles from its original mandate, and that now censors shows like the Big Debate and refuses to run the critically acclaimed documentary Miners Shot Down for fear of upsetting the powerful. Like so many other institutions meant to serve the public interest, the SABC, the country’s main source of news, has been thoroughly undermined by political interference.

At a recent South African Communist Party (SACP) conference, much was made of the SABC’s failings, as well as the broader need for media transformation. The SACP has rightly drawn attention to the threat media monopolies pose to media diversity in what is a vastly unequal playing field. Just last month Media24, the country’s largest print media company, was found guilty by the Competition Tribunal of predatory business practices after it used a heavily cross-subsided newspaper to intentionally undercut a local rival publication. The Naspers monopoly, of which Media24 is a part, was nurtured by the apartheid regime as a counterbalance to the English-speaking liberal press, and it continues to enjoy an unscrupulously close relationship with the state. There is a lot to suggest that the Department of Communications has been captured by Naspers. On digital migration policy, the department has gone against the public interest and the ruling party, playing directly into the hands of Naspers. This has sparked the ire of the ANC’s subcommittee on communications, which has come down hard on Communications Minister Faith Muthambi.

The SACP is correct to point out that our print media landscape, like our society more broadly, is hugely unequal. With just four big players dominating the print sector, the mainstream media remains highly concentrated, disproportionately reflecting the perspectives and interests of the urban middle classes. And it looks like our staggered digital migration process will only entrench the digital divide, leaving poor and working class communities with access only to sub-par programming, while extortionate telecommunications costs place online media out of the reach of many.

Though we may differ over details, the SACP is also right to be demanding greater media diversity in terms of language, perspectives and forms of ownership, and to call for greater funding and more robust institutional support for community media. But where has the SACP been all this time? Civil society organisations, and movements such as Right2Know, have been working with struggling community media outlets, and have consistently campaigned in the interests of community media for many years now. By comparison, in the two decades the SACP has been in a ruling alliance it has scarcely gone beyond paying lip service to actively promote media diversity.

The SACP’s talk of media diversity looks all the more disingenuous when seen alongside its record on media freedom. In its attempt to shield Zuma from scrutiny and satire, the party’s leadership has shown itself to be more than willing to trample over basic democratic freedoms. Let us not forget that this is the same leadership that not long ago, in its frenzied reaction to criticisms of Zuma, called for the revival of archaic laws against insulting the president. It is a great pity that Blade Nzimande and his acolytes have failed to acknowledge that media diversity and media freedom are two sides of the same coin – without one, the other means little.

There has been at least one recent development to suggest that the ANC is not always entirely unreasonable in its attitude to the media. In September Minister in the Presidency Jeff Radebe pledged that the party would abolish criminal defamation. It is welcome news, but given the party’s invectives against the media, as well as the fact that the courts are extremely reluctant to charge people with criminal defamation anyhow, this move looks to be a rather token gesture. It’s hard to avoid the thought that this may just be a sweetener before the real push for tighter control of the media, perhaps in the form of the long-dreaded Media Appeals Tribunal. When it comes to press freedom the ruling alliance has in recent years been two-faced, speaking of the importance of the media as a watchdog while at the same time undermining media rights and independence and doing little to meaningfully promote media diversity.

These days it ought to simply be self-evident that free expression and a vibrant and free media are the lifeblood of democracy, and that the associated right to receive and impart information is vital to a deeper, more participatory and inclusive democracy characterised by informed debate and decision making. But it is as much a truism to say that the more insecure and unaccountable a state becomes, the more it will try to suppress critical journalism. If the ANC is really serious about fostering a meaningfully democratised media landscape, then it needs to stop pointing fingers at others and do some introspection, stop offering mere complaints without proposing potentially effective solutions, and when it does propose solutions these need to be in symmetry with the problems it hopes to rectify. DM