Journalists protest against censorship outside the SABC offices in Cape Town earlier in July. Picture: SUNDAY TIMES
Journalists protest against censorship outside the SABC offices in Cape Town in July. Picture: SUNDAY TIMES

I WAS in Hong Kong when I first felt the quiet horror of media censorship.

It was 2012 and I had just returned from the Canton Fair in Guangzhou-China’s industrious import and export mecca on the mainland. A friend of my father asked for my opinion on Chen Guangcheng, the Chinese human rights activist who had lit a diplomatic firestorm by escaping his house arrest and fleeing to the US embassy in Beijing. At the time it was a prominent, unfolding story covered by most of the major media outlets available in Hong Kong. But on the mainland, where the Communist Party of China (CPC) controls the media far more tightly, I saw nothing on any news station. I had no idea what my father’s friend was talking about.

The chilling realisation that governments can use the media to manipulate their citizens is a driving force behind the constitutional freedoms afforded to the press. In many progressive constitutions, ours included, these rights are made explicit. A tragic irony is that China does in fact have a constitution that guarantees freedom of speech, and of the press. Many Chinese are not even aware that in 1982, all previous constitutions were superseded by 138 articles designed to protect the civil rights of individuals and lay the groundwork for state governance.

Yet the Chinese government pays virtually no regard to this document as it does not limit the CPC’s power. Citizens cannot resort to it to vindicate their rights, and courts have no power of constitutional judicial review. It is nominal and hollow, a promise Chinese citizens have yet to realise.

In contrast, post-apartheid SA is predicated on constitutional democracy and its Bill of Rights is among the most progressive in the world. It is something we, as South Africans, must cherish as the hard-won fruits of the struggle. Sections 15, 16 and 32 echo provisions in the UN’s Universal Declaration of Human Rights, and the International Covenant of Civil and Political Rights to which we acceded in 2002. They guarantee freedoms of thought, opinion, expression and the press, and access to information. And these promises are remade explicitly in our legislation, our regulations and our codes of conduct.

Nowhere is this more important than within the SABC itself. The state broadcaster reaches more than 80% of the South African population and monopolises close to 50% of the television audience and 70% of the radio listenership. It is seen and heard by millions of South Africans from all walks of life — from the miner in Marikana to the business elite.

Yet President Jacob Zuma has already threatened these rights by moving the SABC into the dubious Department of Communications, designed as a government public relations vehicle responsible for "overarching communication policy and strategy, information dissemination and publicity as well as the branding of the country abroad". But the current SABC practice of censoring the truth and stifling the voices of those who are charged with reporting it, is to unravel at the seams of our constitutional democracy. We cannot descend into the whims of a few. We cannot descend into oligarchy or plutocracy. We must defend our rights or risk their obsolescence the way the Chinese constitution has.

Fortunately, our Constitutional Court has demonstrated without fear, favour or prejudice that it is willing to uphold these rights against those who violate them. In particular, the court has dealt with freedom of expression on a number of occasions. In 2014 the majority in Nupsaw (the National Union of Public Service and Allied Workers) and Others v National Lotteries Board upheld the rights of workers to publicly express their dissatisfaction with their employer within the lawful frame of the Labour Relations Act, even if this expression is confrontational.

In 2012 the majority in Print Media SA v Minister of Home Affairs found certain provisions of the Film and Publications Act unconstitutional for forcing publishers to first seek permission from the Film and Publications Board for certain material. Writing for the majority, Justice Thembile Skweyiya observed that "one cannot neglect the vital role of a healthy press in the functioning of a democratic society. One might even consider the press to be a public sentinel and to the extent that laws encroach upon press freedom, so too do they deal a comparable blow to the public’s right to a healthy, unimpeded media".

Ironically to our present situation, the concurring judgment by Justice Johann van der Westhuizen explicitly references the apartheid system of censorship that used criteria such as "indecent", "obscene", "offensive", "harmful to public morals" and "prejudicial to the state security" to justify censorship used to "sustain political, cultural, or religious dominance".

Powerfully, in the 2002 defamation case of Khumalo and Others v Holomisa, Justice Kate O’Reagan foreshadowed that "if the media are scrupulous and reliable in the performance of their constitutional obligations, they will invigorate and strengthen our fledgling democracy. If they vacillate in the performance of their duties, the constitutional goals will be imperilled."

As members of society we cannot afford to be complacent again in our history. We now have strong institutions in the judiciary, civil society and other media organisations. From public criticism, to protest, to legal challenges, to regulatory complaints — we have at our disposal a broad arsenal to defend our rights.

We can bring pressure down to bear on the biggest brands that earn the SABC close to R5.6bn in advertising revenue and sponsorships.

If we have any hope of giving a voice to the millions of marginalised South Africans, we must ensure that this voice can be heard in the first place. We must remind the SABC that SA is a constitutional democracy.

Bhorat is a former Rhodes scholar who now resides in the US.