around this, as will be discussed below.
However, one of the biggest debates around self regulation is the extent to which mechanisms such as councils should have statutory recognition, and further, powers that are backed by the force of the state in the last instance. In many countries outside of Africa, such bodies are generally non-statutory (Denmark being an exception, OSCE 2008; and recently Kenya and Botswana have introduced statutory systems; see also ; ). The argument for non-statutory regulation is on the grounds that introducing the compulsive power of the state to back up self-regulation compromises the very character of self-regulation, and also that it opens the door to government intrusion. A similar argument extends to press councils not having the powers to fine newspapers. In addition to several reasons advanced for such limits on council authority, Zlatev (2008) also notes that “a self-regulatory body would have grave difficulty introducing fines or compensation unless it had a statutory basis – and that, of course, would conflict with the notion of the system being self-regulatory.” The same applies to why a self-regulatory body should not have the power to award compensation to successful complainants. Even more so is any notion that self-regulatory bodies should have the power to prevent journalists or newspapers from operating – which again would only be possible with statutory sanctions. A further argument against statutory powers for a self regulatory body is inscribed in the provision of the African Commission on Human and Peoples Rights, in the Declaration of Principles of Freedom of Expression that self-regulatory powers “shall be administrative in nature” and the a council “shall not seek to usurp the role of the courts”. This particular point has been a source of some misunderstanding in the South African situation, concerning a “waiver” clause, as discussed below.
A non-statutory regime contrasts with state-sanctioned bodies which are able to discipline journalists, even if the majority of their membership consists of non-state actors (as in Kenya). In non-statutory self-regulation,“… the independent media accept their share of responsibility for the quality of public discourse in the nation, while fully preserving their editorial autonomy in shaping it” (Haraszti, 2008). One common problem in media