REPRESENTATION BY THE FXI TO THE INDEPENDENT BROADCASTING AUTHORITY on the provisions contained in the Draft Public Services Broadcasting Bill of 1996 Independence of the public broadcasting service from the government 29 January 1995 General observations and considerations The Freedom of Expression Institute welcomes the desire expressed in Section 2 of the Memorandum on the Objects of the Bill "to establish the independence of public broadcasting from government influence" and reinforcement of this aim in Sections 4 and 5. Further, it is noted in section 6 the intention that the service should be free of improper political and commercial interference. However, the FXI feels that the provisions in the Bill to achieve these objectives have weaknesses and require strengthening to ensure the fullest possible independence of the public broadcaster from these influences. RecommendationsIn furtherance of Sections 3(1) and 4(1)(a), references to the "chief executive officer" must be deleted. In Section 3 a clause should be inserted stating that the salary of the chief executive officer and his or her service conditions will be determined by the Board of the public broadcasting service after consultation with the relevant government department as to the maximum level of salary for this official in accordance with current civil service payment scales. Further commentIt is felt that the independence of the chief executive officer will be compromised if he or she is paid directly by an organ of government. He or she will feel obligated to the government department that pays his or her salary rather than to the Board. Principles and guidelines for public broadcasting services General observations and considerations The strong emphasis on developing South African forms of expression and of presenting news and information from a South African perspective, while desirable, could force the service into a mould of parochialism. Provision should also made for entertainment and information to be broadcast in their original form and not subject to being placed in a strait jacket of conformity to South African values. The intention should also be for the outside world to be brought into South Africa and for the broadcaster to provide "a window on the world". Recommendations The following provisions to be added to Section 5: Section 5(1)(h): Without derogating from the requirements of Sections 5(1)(a) to (g), to also provide information about the world outside of South Africa from perspectives other than a purely South African one, so as to enable South Africans to be aware of and keep abreast of developments, issues and trends elsewhere and the thinking of the people involved in them. Section 5(1)(I): Without derogating from the requirements of Sections 5(1)(a) to (g), to also provide entertainment and cultural programmes from the world outside South Africa so that South Africans may become aware of and keep abreast of developments and trends in art forms, drama, etc, to enable South Africans to be aware of and keep abreast of developments and trends elsewhere and the thinking of the people involved in them. Procedure for the appointment of Board members of the public broadcasting service General observations and considerations It is strongly felt that the procedures outlined, despite being begun by an initial independent process, rapidly revert to placing control of Board members in the hands of a government organ - and this conflicts with the stated intention of maintaining independence for the broadcaster. The government through the Constitutional Assembly has formulated a policy procedure for the selection of Constitutional Court judges which majority members believe ensures the independence of the Bench. This procedure provides for the Judicial Services Commission to make the selection and the State President to make appointments. (According to a recent Sapa report, a conflict has developed between African National Congress and National Party members of the CA over this issue. The ANC position on the appointment of the Constitutional Court judges is that it should remain as it is at present. That is, judges should be recommended to the President by the Judicial Service Commission after careful consideration by that body. The NP suggestion that Parliament should play a role in these appointments is highly undesirable, given the principle that the judiciary should be independent of party politics. Giving the task of making such key appointments to Parliament would simply lead to the possibility of party political horse trading, Sapa concluded.) In our view there should be consistency of policy in appointments to public institutions. The principle of using an independent body to make the selection in the case of judges should be carried over to the selection of Board members of the public broadcaster which is an important independent institution. RecommendationsSubstitute the following for Sections 6(3)(d), (e), (f), (g) and (h): Section 6(3)(d): The panel shall thereafter select the number of Board members required for the service and appoint them as Board members. Should the relevant committee of parliament, provincial legislature or local council object to one of more of the persons so selected (and before their appointment), it shall have the right to express in writing its objections to the panel which shall assess them and either confirm the choice or make a fresh selection. Section 6(3)(I): Service on the panel shall be for five years though it will only come together and sit as a panel when vacancies occur on the Board or when members retire by rotation and require replacement. Chairperson and deputy chairperson of the governing board General observations and considerations To further strengthen the Board's independence the appointment of the chairperson and deputy chairperson shall not be done by an organ of government. RecommendationSections 12(1) and (2) be amended to provide for the members of the Board to be elected at the first meeting of the chosen Board. Appointment of the Chief Executive Officer General observations and considerations This section should make provision for the Board setting the salary and service conditions of the chief executive officer in accordance with the recommendation outlined on page 1. Further provisions which should be added to the Bill at the appropriate places. In the FXI's submissions to the IBA on the Protection and Viability of Public Broadcasting Services, we referred to mechanisms of public access to the Board of the Public Broadcaster. We repeat part of our submission here as it remains relevant. "The whole rationale of the public broadcaster being independent of the government and political parties, and the Board being appointed by a public process, means that the Board is accountable to the South African public at large. "This concept is implicit in the manner the current SABC Board was appointed, and, indeed, the SABC emphasises the issue of its public accountability in its advertising. For instance, in the Weekend Star of December 3/4 1993, the SABC placed a full-page advertisement, entitled ‘IT NOW BELONGS TO YOU'. The advertisement said, among other things, ‘The SABC is becoming a different place. It began with the transparent selections of the Board. We have vowed to be open, transparent and receptive to the views and opinions of society. Most of all we accept that, as the public broadcaster, the SABC belongs to the people of South Africa... We're also making it our duty to interact with you.' It then lists a telephone number which the public can call to voice opinions and raise issues. "The FXI welcomes such devices on the part of the public broadcaster and endorse all the abovementioned sentiments of the SABC. This is precisely our view, too. But there is no mechanism which obliges the SABC to be accountable to the public. In our view this is a serious shortcoming and such mechanisms should be introduced by way of law. "The only way any members of the public can have access to the SABC Board is if the Board agrees to meet them. Nothing compels the Board to do so. And if it does not suit the Board to meet any public group, or to do so within a specific time frame, then it simply does not do so. We therefore recommend the following: "3.1 That by law the Board of the SABC be compelled to hold four quarterly report-back meetings to the public every year and that in addition, it releases publicly, minutes of all its meetings. The public report-back meetings must be of sufficient format and duration to enable members of the public to comment and make proposals. "3.2 However, there will be times when specific groups would like to meet with the SABC Board as a matter of urgency, and such requests must also be accommodated. Therefore, again by law, the SABC Board must be compelled to meet with such groups if the party requesting the meeting can submit 100 signatures in support of its request. This requirement will prevent frivolous groups from approaching the Board, and will further show that there is a concerned body of people behind a request for a meeting. Such meetings need not be held with the full Board if this is not necessary or is impracticable and either the executive committee of the Board or a sub-committee could be authorised to conduct such meetings. We believe that the notion of public petitions is an important democratic device and that such a mechanism should be introduced in respect of the SABC Board. "These proposed mechanisms will help to ensure that the SABC is publicly accountable and responsive to the needs of the public." In addition, we recommend adding a section dealing with the media. This should provide for meetings of the Board which deal with the policy of the broadcaster to be open to the media for reporting purposes. There will be instances where the Board will want to discuss certain matters in private and it can adopt the normal procedure of going into committee. However, the outcome of such committee deliberations must be made public at a general meeting. We include in that exclusion mechanism deliberations about the commercial activities and trade secrets of the SABC where a disclosure of such information to the general public could expose the corporation to unfair advantage by its commercial opponents. And, finally, we request a further provision be inserted in both Section 3 and Section 4 dealing with the protection of the public broadcaster from government and/or political parties. The rationale of the provision is self-evident so it does not need further elaboration. The section to be inserted should read: It is incumbent on members of the Board and the chief executive officer and his or her immediate deputies to report to meetings of the Board discussions or talks they have had with members of the government and/or politicians from the political parties. The date and time of the meeting, its duration and subject matter shall be recorded. The report to the Board shall be made available to the media. An exception to this provision is, of course, meetings by the News Staff in the gathering of news.
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