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JOINT CONSTITUTIONAL REVIEW COMMITTEE
12 May 2006
ELECTRONIC MEDIA CONVERGENCE: BRIEFING; MEDIA STATEMENT BY S CAMERER MP: DISCUSSION
Documents handed out:
Electronic Communications Act (No. 36 of 2005)
Written Submission on Amendments to Chapter 9 of the Constitution for the Joint Constitutional Review Committee: Part 1, 2 & 3
S Camerer MP: Letter to Chairperson of the Joint Constitutional Review Committee
Chairperson’s Letter Responding to S Camerer MP Media Statement
The Committee discussed four items. First, it received recommendations from the Department of Communications on constitutional amendments catering for convergence of electronic media. The Committee agreed that Section 192 of the Constitution was outdated and proposed that it be amended.
Second, Ms S Camerer’s somewhat misleading media statement about the ANC‘s position on amending the Constitution was discussed. Ms Camerer apologised to the Committee for any misleading statements and advanced that her intention was to ascertain the ANC‘s position regarding the issue. The Chair felt that Ms Camerer and her party had removed the debate from the Committee to the public domain before the Committee‘s work on the issue had been concluded. The Chair appealed to all Members to guard against doing so and insisted that they treat sensitive matters with great circumspection. Members agreed.
Third, the role of the Committee in the Equality Review Campaign was discussed. The Committee was unsure of what was expected of it and clarity was requested from Parliament’s Presiding Officers. The matter would be addressed at the next meeting.
Fourth, a provisional business plan for the Committee was discussed. The plan should have been ready for this meeting, but was not, and the matter was deferred to the next meeting.
The Director General of the Department of Communications, Ms L Shope-Mafole joined the meeting.
The Chair welcomed the Director General to the meeting. He gave a brief background explaining what gave rise to the matter for consideration. He cited academics from Wits University, Ms Mashaba and Ms White, who felt that the Constitution did not take into account electronic convergence; hence the need for amendment, and Professor Julien Hoffman from the University of Cape Town (UCT), who agreed with the Wits academics but did not feel that it was necessary to amend the Constitution. These divergent views prompted the Committee to look into the matter. The Chairperson stated that it was imperative that the Constitution keep pace with developments when dealing with technical issues and for that reason he had asked the Department of Communications to assist the Committee with recommendations. In conclusion, he asked the DG: Communications to address the Committee.
Department of Communication presentation
The Director General said the Department was honored to share its views on the matter. She conveyed the Department’s recommendations to amend certain parts of the Constitution concerned with convergence of electronic media. The Department proposed the following four amendments be made:
-The word "broadcasting" should be amended because the Constitution needs to be developed to keep up with technological advances. She rationalised this by explaining that the Telecommunications Act recognised that we once had very distinct industries of telecommunications, broadcasting and computers which developed separately, but in a parallel way. She explained that the limitations in technology that once existed no longer exist today. Today, broadcasting is no longer limited to TV and radio. It has been indicated that by 2010 for example we should be able to view a soccer match on a mobile phone.
-Section 192 of the Constitution should not be removed but rather updated to reflect development in the communications sector (i.e. to keep up with technological advances)
-The Independent Communications Regulatory Authority of South Africa (ICASA) does not appear in the Constitution. The Committee asked that it be placed in the Constitution along with provisions for appointment, removal and management of its officials. The Director General expressed that the Committee hoped that the Authority would be enumerated as one of the Chapter 9 institutions actually stipulated in the Constitution to strengthen the fact that it shared the characteristics of the Chapter 9 institutions.
-Although it is not a major issue the Department does not agree that the only time a regulatory body must be independent is when the word "independent" is placed before it. Like with other Chapter 9 institutions, that did not have the word "independent" in their names, the Department preferred that the regulatory body should not be preceded by the word "independent" and recommended that it be called the Electronic Communications Authority of South Africa.
The Chair asked Members for their comments.
Adv F Beukman (ANC) wanted to know who wrote the Department‘s document.
Ms M Njobe (ANC) questioned whether there was a deliberate plan to omit the independent authority to regulate broadcasting under Section181, because the body seemed to be treated differently in the Constitution.
The Chair added to Ms Njobe’s speculation and expressed that the Wits academics also observed the same thing and were of the view that the authority be included.
Adv A Gaum (ANC) wondered whether it was correct for this Committee to handle the removal of the word 'independence' from Section 192 of the Constitution.
Ms D Smuts (DA) attacked the Director General for making contradictory statements. She
argued that the Director General‘s statement that in Section 181 there should be reference to a communications regulator contradicted her statement that the word "independent" be removed from Section192. She commented further that Chapter 9 concerned bodies that were independent and functioned only under the Constitution and the law. These bodies were only accountable to Parliament; thus if a body is not going to be independent it should not be in Chapter 9 of the Constitution.
Mr J Jeffrey (ANC) supported the view that Section 192 was outdated and that it needed to be amended. He failed to see the value of this Committee debating whether to keep the word 'independent' or not.
Ms Njobe agreed with Mr Jeffrey and Ms Smuts on the above points.
Ms S Camerer (DA) also agreed with Mr Jeffrey and Ms Smuts.
The Chair expressed that the Committee is not the nuts and bolts of the decision-making process. The Committee simply makes recommendations and in this case the Committee recommends that Section 192 be updated.
The Director General thanked the Members for their input. She acknowledged that Members and the Department concurred on amending Section 192. She remarked that the Department strongly believed that a strong, professional independent regulator that could exercise its independence from government and industry was needed. She added that the Department preferred removal of the word "independent", but either way it should not affect the independence of the regulator. The appointment process under Sections 193 and 194 was very different to other appointment procedures in the Constitution and this should be looked at in conjunction with the word "independent".
S Camerer MP Media Statement
The next item for discussion was Ms Camerer‘s media statement. The Chair asked Ms Camerer if she had anything to say about the statement.
Ms Camerer replied that her statement was not a "solo flight" and that the decision to make a statement to the press had been a party decision. She remarked that the DA was merely trying to convey its impression of what the ANC‘s position was, not only on the Committee but perhaps also in light of what has been happening. She commented further that perhaps the statement was not as clear as it should have been and apologised for any misleading statements emanating from her media release.
Ms Camerer remarked that she wrote two letters to the Chair and that he had only received the first one, which he had replied to. She added that the Chair‘s response to her letter concerned the integrity of the Committee, and that it was never her intention to undermine the integrity of the Committee. She expressed that the Committee was very important and that although Members should not react in an ad hoc way, they should be very concerned about what they said because amending a Constitution is "serious business".
Ms Camerer commented further that they were entitled to fair comment, and then appealed to the Chair that if he wanted Members to not react to certain issues that are still under Committee discussion and undecided, then he should convey this to Members and they would comply with this.
The Chair thanked Ms Camerer. He expressed that the issue at stake as far as he was concerned, was not the fact that she interpreted a specific position taken by the ANC as certain, which was "incorrect and acknowledged" by Ms Camerer, but rather that (1) she removed the debate from the Committee to the public domain and (2) the effects that her actions had on the Committee. The Chair expressed that Members should guard against this, and that he would like to see the workings of the Committee elevated above petty political point scoring.
The Chair then stated that the Committee dealt with sensitive matters which they had to approach with great circumspection. The Committee‘s responsibility is an "immense one" dealing with the Constitution, which is a contract with the people of the country. He then concluded the matter by thanking Ms Camerer for dispensing of the issue and stated that the issue was closed.
Role of the Committee in the Equality Review Campaign
The Chairperson then moved on to the next item on the agenda i.e. the role of the Committee on the Equality Review Campaign. He drew Members’ attention to the document that was previously circulated within the Committee and invited comments. He added that the Equality Review had to be completed before 23 June. The Presiding Officers had referred this issue to the Committee, but he was somewhat unsure of what was expected of it.
Mr Jeffrey complained that the document was not easy to follow; that it appeared more like minutes of a meeting and that he did not know what was expected of Members.
Ms Njobe agreed that the document was not easy to follow. She felt the document dealt with the equality clause and unfair discrimination in the areas of gender and disability. The review process should not be confined to gender and disability and should include other areas listed under Section 9(3) of the Constitution. She added that she did not understand the pressure to meet a deadline for 23 June. She expressed that the Committee would not be able to evaluate equality in only two weeks.
Ms Camerer agreed with the points raised by the previous speakers. She noted the success of the Equality Courts in promoting equality. However, other bodies such as the Human Rights Commission (HRC) and the Commission on Gender Equality (CGE), who were also charged with the same functions, were unsuccessful due to being severely under resourced and understaffed. She argued that the country’s impressive laws were encumbered by poor implementation.
The Chair responded that the document was distributed merely to alert Members to the review process and that logistical realities prevented the presentation of a comprehensive report. He emphasised the need to look at why the Constitution did not have the desired impact and effect.
Mr Jeffrey voiced concern about the nature of the Committee’s involvement with the HRC and the CGE. He expressed that since these institutions reported to the Justice Portfolio Committee, the status quo should continue as the Justice Committee had the necessary experience.
The Chair stated that the Chair of the Justice Committee was also involved in the ad hoc committee. He re-iterated that the purpose of the document was merely to alert Members and requested that Members apply their minds.
Committee Provisional Business Plan
The Chair then moved to the final item on the agenda i.e. the provisional business plan. He listed the deadlines for the business plan, annual programme and budgeting process. His tone underlined his determination that these deadlines be met. Furthermore, he bemoaned the paucity of opposition Members that attended Committee meetings. He reminded Members who could not attend that they should make the appropriate apologies in writing. Finally, he mused that: 'our quality of work produced, is a reflection of input received.'
Ms Njobe echoed the concern of the Chairperson. She added that attendance was dependant on how individuals and parties viewed the Committee’s work and that the previous Constitutional Review Committee was unable to function due to poor attendance.
Mr Jeffrey argued that the smaller parties were to blame for the poor attendance as the ANC was always adequately represented.
Dr C Mulder (FFP) conceded that the smaller parties were struggling to finalise Committee membership.
The meeting was adjourned.
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