Pierre De Vos
12 May 2008
opinion
Johannesburg — THE SABC board's suspension of its CEO, Dali Mpofu, shortly after Mpofu had suspended the group executive of news , Snuki Zikalala, has thrown into question the continued operation of the entire board.
The question arises whether the entire board could be fired to make way for the appointment of a new one. News that the African National Congress (ANC) caucus has decided to table a motion of no confidence in the board suggests that ANC members in the National Assembly believe they have the power to fire the board. They do not, however, have this power.
Section 16 of the Broadcasting Act of 1999 states that the "appointing body" may remove a member of the board from the office but only "on account of misconduct or inability to perform his or her duties efficiently" and only "after due inquiry and upon recommendation by the board".
It is unclear whether the "appointing body" is the president or the National Assembly. This is because the act states that the nonexecutive members of the board must be appointed by the president "on the advice of" the National Assembly. In legal terms, this means that the president must appoint the board as nominated by the National Assembly and that he does not have discretion in the matter.
The most obvious reading of the act would be that the president will have to fire an individual member of the board after the requirements of section 16 had been met, but only after such a dismissal was recommended by the National Assembly.
The mere adoption of a vote of no confidence in the board by the National Assembly will therefore have no legal effect.
There are good reasons the National Assembly (or the president) does not have the power to fire the entire board of the SABC. It would place far too much power in the hands of the majority party to influence the board. If the board as a whole could be fired by the majority party in the National Assembly, the freedom of expression and journalistic, creative and programming independence of the SABC, as enshrined in the constitution and in the Broadcasting Act, would be fatally compromised.
It therefore seems that the ANC MPs in the National Assembly are trying to shut
the stable door after the horse has bolted. They should have done their job last year by refusing to appoint a board they had not agreed to.
Late last year, after the portfolio committee finalised the list of nominees to the board, ANC headquarters ordered the party's MPs to accept a list of new board appointees that contained three different names from those agreed to by the committee. Newspapers reported at the time that angry ANC MPs at first refused to endorse the new list, backing down when instructed to do so by then ANC chairman Mosiuoa Lekota.
There is reason to believe that this was illegal and that the nomination of the final list by the National Assembly could have been successfully challenged in the Constitutional Court. The constitution requires the National Assembly to "facilitate public involvement" in its work and the Broadcasting Act explicitly provides for public involvement in the nomination of the board. Two years ago, the Constitutional Court declared invalid an act of Parliament because it had not provided for reasonable and effective participation in the law-making process by the public.
As Judge Sandile Ngcobo said in the Doctors for Life International case, facilitating public participation encourages citizens to be actively involved in public affairs, identify themselves with the institutions of government and to become familiar with the laws as they are made.
It enhances the civic dignity of those who participate by enabling their voices to be heard. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice.
It strengthens the legitimacy of legislation in the eyes of the people.
Finally, because of its open and public character, it acts as a counterweight to secret lobbying and influence peddling.
This means the National Assembly -- elected by almost 15-million South Africans -- cannot rubber-stamp a decision taken by a few party leaders (or was it President Thabo Mbeki?) who are not members of the National Assembly. They cannot replace a decision they had reached after a process of public participation, with a decision of
non-MPs. If they did this, it would subvert the participatory aspect of our democracy. Yet that is exactly what happened with the appointment of the SABC board.
The ANC MPs should never have abdicated their power to appoint the board to Luthuli House, but they cannot fix this
by now instituting a vote of no confidence in the board. Maybe someone should tell the members of the ANC caucus that they are wasting their time. Or is this move only part of a larger battle to discredit the board with a view to getting at least some of the members to resign? Only time will tell.
De Vos is a law professor at the University of the Western Cape.
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