18 November 2008
Today the Broadcasting Amendment Bill, primarily dealing with the removal of the SABC Board, will be debated and passed in the National Assembly. It should be signed into law soon after by the President. The “Save our SABC” Campaign, representing COSATU, the Treatment Action Campaign, a host of NGOs and CBOs including the Freedom of Expression Institute, the Media Monitoring Project, and the Media Institute of Southern Africa believes that important improvements have been made to Broadcasting legislation but key problems remain.
From the initial launch of the Bill the SOS Campaign argued that a piecemeal approach to legislative reform was not ideal. We have called strongly for the launching of a public consultative Green Paper, White Paper process leading to the promulgation of a new SABC Act. The SABC’s Charter, governance issues, finances and legal structure all need to be thoroughly debated and significantly revised.
The original Broadcasting Act, 1999 contains a number of serious gaps - certain of these will now be dealt with. First, the Act contained no provisions for the removal of board members by Parliament. Board members could only be removed on the recommendation of the Board itself - clearly a problem since the President appoints the Board on the recommendation of Parliament and thus logically Parliament should play a role in the removal of Board members. The new Broadcasting Amendment Bill now allows for the removal of individual board members through a Parliamentary process with clear criteria. Second, the Broadcasting Act, gives the President the right to appoint the Chair and Deputy Chair of the Board. The new legislation now, strengthening the independence of the SABC Board, calls on Parliament to make these recommendations. Third, the Broadcasting Act included no resignation provisions for Board members - again a major oversight which has been rectified.
The remaining problems however are not insubstantial. First, the Bill has not dealt with the issue of appointments and second its provisions for the removal of the Board as a whole have been weakened. In terms of appointments Parliamentary Portfolio Committee members have argued that they haven’t amended these clauses because it requires serious policy debate, better handled as part of a major legislative review process. But in fact SOS’s solutions were easy, simple and further absolutely critical to restore the public’s faith in the appointment process right now before a new SABC Act is passed. The Coalition called for greater public participation and greater transparency in the process and drafted specific clauses in this regard. Further, it included strengthened disqualification clauses barring public servants, members of Parliament, party office bearers and individuals with direct financial interests in the Broadcasting industry from being board members.
Further, the Coalition called for the gaps in the Broadcasting Act, 1999 around the appointment of executive members to the Board to be dealt with. This gap has lead to continuous litigation. Following international best practice SOS drafted a simple clause saying that the executive members of the board should be appointed by the non-executive members of the Board without interference from the Minister. This gap has been left untouched.
Finally, in terms of the removal of the Board as a whole these sections have been weakened by the fact that it is now easier to remove the board. Previously Parliament needed to prove that the Board had not fulfilled its fiduciary duties, complied with its Charter and further had not controlled the affairs of the Corporation. The word “and” was removed and “or” put in its place. The Board can now be removed for a single reason.
Since these issues have not been dealt with in the Broadcasting Amendment Bill it becomes even more imperative that government commits itself to and implements a major broadcasting legislative review process.