IBA and the Curse the ‘Founders’ Foresaw

By Parkie Mbozi

THE PAST days and weeks the news media – local and international – have been awash with a plethora of statements, perceptions and debates about the justice or lack of it relating to the punishment inflicted on Prime TV by the ‘Independent’ Broadcasting Authority (IBA) on 4^th March 2019.

The perceptions have all been bordered on the fairness of closing down the stations, albeit only temporarily. You could almost say the perceptions are as divided and polarized as the country’s politics. I will add to the debate but by contextualizing it to the flaws in the provisions of the relevant (current) law – the IBA Act. Like the saying goes, “the devil is in the detail.”

Short of full facts about the circumstances leading up to the punitive actions meted by the IBA on the affected stations, I will focus on the history and formulation of the IBA Act and resultant perceptions in moments like this. The current Minister of the Ministry of Information and Broadcasting Services (MIBS) – Hon Dora Siliya – as an opposition MMD MP then, while debating in Parliament, once recited the famous quote, “Perception is reality.” This means that, “If you are perceived to be something, you might as well be it because that’s the truth in people’s minds” (quote from the Internet). I will add Ivanka Trump’s quote, “Perception is more important than reality. If someone perceives something to be true, it is more important than if it is in fact true.” Wise words indeed!

So, using the above wonderful analogies, let us dwell on the perceptions under the present circumstance, assuming that indeed “perception is reality”. Reading from the plethora of comments on the 30-day suspension of Prime TV, the perception one gathers is that THE IBA IS NOT INDEPENDENT AND FAIR. The statement by the three church mother bodies released on 6^th March 2019 was succinct but loud enough on this. The IBA must contend and deal with this ‘picture in the head’, whether real or imagined, unfortunately.

So, where does the above perception come from? To put it into context, we have to refer to the provisions of the IBA Act, in its present form. I say “present form” because the Act has undergone two amendments since it was first assented in December 2002. From these two amendments, it has metamorphosed from one that would have created some semblance of a truly ‘Independent’ broadcasting regulatory authority to one that has ended up creating a parastatal, almost in its entirety. The original IBA Act was an architype of the Independent Communications Authority of South Africa (ICASA) Act of 1999, where it seems to have been lifted from, almost word-for-word in some sections.

Yet, the founding ‘fathers’ of the Act foresaw the curse of taking the route we ended up taking through the two Amendments. They foresaw the would-be negative perceptions about the independence of the “Independent” Broadcasting Authority (IBA) that would be a product of the Act in its current form. The curse started under the MMD government who, for eight years after then President Levy Mwanawasa signed off the IBA Bill on 31^st December 2002, refused to implement the Act simply for their displeasure with a name or two proposed by the ‘Appointments Committee’ to what would have been the first IBA Board. The ‘Appointments Committee was itself independently constituted by stakeholders as provided by 2002 law Act. Unfortunately, due this disagreement, the fundamental provision of ‘Appointments Committee’ was one of the casualties of the 2010 Amendment to the IBA Act.

To its credit, the Patriotic Front (PF) government went ahead to actualize the IBA Act in 2012, after the eight years of dilly dallying by the MMD government. However, by then the Act had been significantly Amended in 2010. The principles of an independent regulatory mechanism had been substituted for those of a government-led mechanism. The scenario was further worsened by the 2017 Amendment, which now impels the IBA to collect TV levies for one ZNBC, a key player in the industry. A case of the referee and a player wearing the same jersey and scoring into the same goal post? Back to PERCEPTION.

The two changes to the original Act are the genesis of the perceptions we witness today. So, what did the founding “fathers’ foresee and want to avoid? First, they wanted to see a truly independent broadcasting regulatory authority that would not only be fair but also seen to be fair. Like they say in law, justice must not only be delivered but also seen to be delivered. Back to PERCEPTION. Below are summaries of what the original (2002) IBA Act provided on key principles and how it has been amended – you could be excused to say maimed – by the Amendments of 2010 and 2017. Sadly, both Amendments are an assault on the principle of (perceived) independence of the IBA.

1. The 2002 provision for an ‘Appointments Committee’, constituted by stakeholders (LAZ, MISA, PAZA, NGOCC, Church bodies, etc) for the purpose of recruiting (independent) IBA Board members through an open system, was totally deleted through the 2010 Amendment.
2. Composition of Board: having done away with the ‘Appointments Committee” the function of recruiting IBA Board, the 2010 Amendment transferred the function to the Minister.
3. Appointment of Board Chair and Vice would be done through internal elections (2002 Act). Currently the MIBS Permanent Secretary is the Chair, though not provided for in all three versions of the Act.
4. Appointment of Director-General would have been done by the Independently Constituted Board (2002 Act). The reality is MIBS handled this function in 2012 even before a Board was in place. This happened at ZNBC and Times of Zambia as well.
5. Collection of Television levy for ‘public service broadcasting’ (ZNBC the only public broadcaster, Section 22A of 2017 Act.). This was never there in the 2002 and 2010 Amendments. Introduced in the 2017 Amendment.

Unfortunately, typical of what we have become as a society, few bothered to READ, pay ATTENTION and DO SOMETHING when the original Act was being amended – not once but twice. One would be justified to say that Zambian the society has become one of a reactive rather than pro-active people, complainants rather actors and a society that pays attention to generalities rather than the details.

During the 2010 Amendment the ‘real’ opposition MPs were left to do battle in Parliament but they did not have the numbers; more so that almost half of the MPs of the main opposition then – the PF – had switched allegiance to the ruling MMD. Adding his voice to the topic at hand, MMD faction leader Felix Mutati is quoted that, “Suspension for me will injure tolerance” and added, “but they are denying the rest of us who enjoy the services to continue enjoying the services.” He may not remember that the Amendments the cabinet he was a member of made were the most devastating to the original IBA Act. Another case of not paying attention to detail and being reactive rather than pro-active?

The way forward is for stakeholders to ‘dialogue’ over, and re-look at, the IBA Act and possibly un-do the deed that was done and ‘exorcise’ the curse. A lesson has been learnt.

The author is media and communication scholar, research fellow and PhD candidate based in South Africa.