On the making of bad law

In Beeld this Saturday, I wrote of the implications of the Minister of Communications publishing what was the worst piece of draft legislation I have seen ever. What does it mean if one puts out a scrappy, contradictory, ill-considered Bill that has not even been discussed with your cabinet colleagues?

I wrote:

The new Minister of Communications has given us a valuable lesson in how laws should – and should not – be crafted.

Siphiwe Nyanda is a military man, a can-do type. Now that he has retired as a general, he is determined to show he is a man of action in broadcasting. Within a few months of taking the office of communications minister, he has issued a Public Service Broadcasting Bill which, if passed, would fundamentally change broadcasting at every level.

He is doing what was promised by the Zuma government: moving fast to deal with problems that were neglected by his predecessor and being bold and active in doing so. It is, in many ways, refreshing.

One can understand his urgency. The SABC needs fixing, as does the regulator Icasa. Community media is struggling to survive and fill its mandate, as is SABC International. These are pressing issues, and Nyanda’s predecessor sat on them for years allowing the situation to deteriorate to a point of crisis.

But new policies cannot be written into law in a few weeks, particularly in a complicated and fragile industry like broadcasting.

Debate has focused on the content of the Bill – and so it should, given how far-reaching its impact would be. If passed as it stands, it would introduce a new tax to fund broadcasting, and create a massive new fund to pay for Sentech, the SABC, community media and all other kinds of public service media. It would turn SABC International into a voice for government foreign policy and force community broadcasters to enter into dependant partnerships with municipalities. It would undermine the regulator, giving many of its powers to others, and give the Minister the capacity to interfere directly in all the supposedly independent broadcasting bodies, including the SABC and Icasa, the regulator. Broadcasting would now need to serve the “developmental state” and not, as in previous legislation, the constitution.

It would, in short, take us a long way from the open and independent system of broadcasting envisaged in the constitution and in policy and law since 1993. But the Minister has made it clear that this is a draft for discussion and is by no means final. This has led to debate about the merits of the proposals and suggestions to fix the Bill, but discussion is limited to tinkering with the model he has put up for discussion, and its merits and demerits.

The discussion is futile. There is no point in discussing the proposal a tax because the Treasury has already made it clear that it will not support this – and only the Treasury can introduce legislation dealing with money matters.

How can we discuss the merits of the new fund if we don’t know how big it is going to be or what criteria it is going to use to disperse the money?

The rest of the Bill is so shabby and riddled with such internal contradiction that we are mostly trying to understand it and guess what the Minister is hoping to achieve. Does he really want to make community media dependent on the municipalities it has to report on, or does he just want to find ways to give more resources to these stations via the municipalities? If it is the former, then he would be breaching the constitution; if it is the latter, as I suspect, then we can debate other ways in which to achieve this without sacrificing the independence of these broadcasters.

The Minister’s approach forces us to limit the debate to the ideas he has tabled and gives little scope to canvass alternative ideas for the problems he is hoping to address. It is being imposed from above rather than canvassed from those who are involved with and know most about the industry.

This is no way to make policy and law.

A normal process would involve a white paper which sets out the problems and issues which need addressing, and possible solutions to be discussed and debated.

A green paper would then home in on the best solutions and set out what the Minister would hope to achieve in a new law. Once that had been fully canvassed, it can be handed to legal experts to put it into legislation. At this last stage, discussion can focus on whether the drafting achieves what it set out to do.

Admittedly that process takes time, and can be frustrating to a Minister who wants to move fast and effectively. But it does mean that when the Bill is tabled in parliament, all the problems have been defined, the options canvassed and potential solutions fine-tuned. We would be much more likely to achieve a lasting and effective solution.

At the moment, we have the appearance of consultation on the Bill, but not the substance.

The Bill highlights another major issue: the extent to which those magic words, “the developmental state”, is being used as a catch-all to justify all sorts of things. It is difficult to oppose the broad idea of a developmental state, just as it is difficult to criticise the notion that public money used in state enterprises should not be contributing to development.

But this avoids the question of what kind of development we are talking about. It assumes there is one path to development, and there is consensus about it.

In broadcasting, development journalism can mean very different things, depending on one’s approach to development. If it is an old-fashioned, top-down, government-led form of development (“We will give you houses, hospital and schools and all you have to do is vote us into power and wait for us to do it.”) then the purpose of journalism is largely to tell you what government is doing, so that the public can appreciate it fully. This is the kind of development envisaged in the Public Service Broadcasting Bill.

But if you embrace a more modern form of participative development, in which the state works with communities to determine how and what development is undertaken, and empowers them to promote their own development, then you need a media that provides an interactive discussion between the parties, one that promotes exchanges that flow both ways – so that government can discuss what it is doing, and people can be telling the government what they think about it and together they can achieve something.

If you want the former, you would give the power to local municipalities. If the latter you would give power to the community (via the media) to make local politicians more responsive to them. A truly developmental state will ensure the media is independent and will do much more to promote public access to the airwaves, pushing power downwards so that bodies like the SABC serve not parties or leadership but communities and audiences.

Which is it you want, Mr Minister?

*This column appeared in Beeld, Saturday January 23.

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