By not appointing the new SABC board, despite having recommended names forwarded to him late last year by parliament, President Cyril Ramaphosa is clearly failing to comply with his constitutional duty to do so.
This story has not received sufficient attention in the public space because of the energy crisis, and that is understandable. However, the constitutional consequences of Ramaphosa’s failure to do what he is mandated to do are far more serious than people might have realised.
First, the SABC is crucial to the effective functioning of our democracy. This is an elementary point that does not seem to be deeply grasped despite being almost axiomatic. Millions of South Africans rely exclusively on the public broadcaster as their main source of news and information.
If you think about how information shapes your beliefs, and ultimately your actions, you can see why the SABC has always been a site of political struggle. The ANC in particular has a deep understanding of how important it is to control the SABC if it is to cling to political power.
There is no doubt in my mind Luthuli House is desperate to control the SABC. Key to that is controlling the board.
Nothing less than the health of our democracy is at stake in the question of good governance of the SABC. Unless the SABC is run honestly, including due compliance with the necessary laws and policies that govern the public broadcaster, our political life will be poorer. You simply need to think back to the ruinous SABC years under Hlaudi Motsoeneng’s non-leadership to recall how serious is the question of governance of the public broadcaster.
Second, and related, many of us have explained before that the model of democracy we opted into in the 1990s is founded on normative ideas, including those of active citizens participating in the political life of our democracy, and deliberating about ideas and issues in the public sphere. That vision is intrinsically dependent on a public broadcaster that does its job brilliantly, and without political interference.
You can kiss goodbye the dream of a deliberative and participatory model of democracy if the SABC is not working optimally. Sure, commercial media exists, and new media including social media have opened up other ways of entering and shaping debate. But they remain, in our context, relatively exclusionary or explicitly linked to the interests of private investors and shareholders who want to make a profit from their assets. That is why a publicly owned media entity with a public mandate is uniquely socially and politically important to public life.
What does this have to do with Ramaphosa? Well, he is in breach of the constitution and other sources of law by stalling on the formal appointment of a new SABC board.
Everything I have described above about the importance of the SABC requires, in governance terms, a board to be in place to make sure the public mandate of the SABC is executed daily. This is why Media Monitoring Africa (MMA) is correct to challenge Ramaphosa by filing papers to compel him to confirm the names recommended to him by parliament. His failure, thus far, to make these appointments, despite an agreement from his legal advisers that the matter is important and urgent, shows Ramaphosa does not respect the very urgency he is aware of. As a businessperson, he is also intuitively aware of the crucial governance role boards play, and which cannot be outsourced to directors of a company who should, instead, be held accountable by the board.
Ramaphosa has not only failed to ensure a board is in place, despite parliament giving him the names, but he has also actively allowed the unlawful move to be made by the shareholder minister to simply stipulate the board is the group CEO. That is legal and practical nonsense, not only because a board is described in the Broadcasting Act as consisting of 12 non-executive members and three executive members but, further, the non-executive members appoint the executive members. It therefore cannot be the case that one of the executive members, the group CEO, can simply be announced to be the interim board.
How the hell can an entire board, as outlined in the statute governing the SABC, simply be stipulated to be one staff member of the SABC? Must they also then, as an aside, hold themselves accountable as GCEO? This would be laughable if the democratic consequences in terms of poor institutional governance, and lack of strategic oversight over the public broadcaster, were not serious.
Besides violating the legal description of who the board should consist of, the other legal ridiculousness of this whole situation is that other legally defined roles of the board are not being fulfilled, such as ensuring the public broadcaster complies with the Public Finance Management Act; leads, monitors and controls activities at the SABC; designs an optimal organisational structure for the SABC; makes sure there is editorial independence and compliance with the Charter and so on.
Given what I said at the start of this analysis about the link between our democracy and the public broadcaster, how – can anyone tell me? – is Ramaphosa unmoved by the urgency of confirming the appointments?
Two final points are worth making.
We should be very clear it is not unusual for the president to have a ceremonial role when it comes to some aspects of parliament’s authority. For example, other than with regards to constitutional court judge appointments and those of the leadership of other courts, the president cannot overrule recommendations of ordinary judges that are made to him. It is simply a quaint hangover of colonialism that a letter bearing his signature or office stamp conveys the news to a newly minted judge. Our constitution does not want him to have executive authority that trumps parliament’s unique powers. The same is true here. We do not want the president of the governing party to tell us who should be on the board of the SABC. That defeats the point of it being “independent”, a word that appears slavishly often — for good reason — in the sources of law relied on in the papers filed by MMA. This is also why the law states he “must” make the appointment after being advised by parliament. It is compulsory he does so, and it is therefore not a matter of how he feels.
By not confirming the SABC board, Ramaphosa is basically vetoing the work of parliament. That is a direct assault on the constitution. If he is a constitutionalist, as his supporters so often declare him to be, he would respect parliament, and not use the ceremonial role of assenting to their recommendation by basically vetoing them. He is, in a weird kind of way, performing a sort of filibuster here. Is that really what someone would do if they were committed to respecting the doctrine of separation of powers, and the principle of constitutional supremacy?
Whether MMA wins or loses the case on a technicality (such as not getting urgency or direct access not being granted), from a political and ethical viewpoint, we as citizens should shout loudly and publicly, make our disdain known, so the president can be clear we are not only irked by the blackouts, but also by other aspects of his leadership stasis. This case is profoundly important too from a democratic theory viewpoint. Our political rights, including the right to vote, presupposes a free flow of healthy information into the public space, free of disinformation and misinformation, so far as possible. A SABC board’s significance is tied to this cluster of constitutional rights. That is also, by the way, why editors and commentators should not treat this story as a marginal one.
Lastly, what would motivate him to not confirm the names sent to him? Well, he doesn’t talk to us much so we can only speculate. Controlling the SABC is crucial to controlling information. We have an election next year. The ANC has a serious chance of dipping below 50%. There is no doubt in my mind that Luthuli House is desperate to control the SABC. Key to that is controlling the board. Given that Ramaphosa is meek and simply does what the ANC national executive committee wants, I fear he is stalling because he is not committed to putting the country first. He has checked out. It is therefore time for us to get ready, again, to fight to save our SABC.
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