Yet again the Government of Adama Barrow has proposed yet another piece of law which can only be described as unnecessary but clearly intended to limit the space for the media and consequently silence citizens in the way they engage on national issues. This Media Service Bill is not a law that is necessary in a democratic society especially for a country like the Gambia that has had a very longstanding of history and experience of infringements on the media and freedom of expression.
A close review of the bill will show that this is a proposal which will put power in the hands of government to determine which media house will operate or not and who to use the media or not. For example, clause 39 of the bill states that no person shall operate a newspaper unless he makes an affidavit to the Gambia Independent Media Authority which is established under the bill. The affidavit should contain the address of the newspaper as well as the persons who print, publish, edit and own that newspaper.
It is clear in clause 8(4) that this Authority is prone to Executive control because it is the President in consultation with the Public Service Commission (PSC) who appoints all of the board members of the Authority. Further, in clause 15(1) even the Director General of the Board is appointed by the President in consultation with the Board and the PSC. In clause 16(2) it is again the President who appoints the other directors of the Authority. In clause 20(1) it is the Minister of Information who approves the budget of the Authority.
Clearly what these provisions show is that this Authority is nothing but a tool in the hands of the Executive hence it is neither independent nor does it meet the standards of good governance. Why should the Government wish to control this authority if indeed it intends to ensure its independence such that it can generate trust and confidence in the independent media and the citizenry.
These provisions show that indeed this bill is another attempt to stifle free press and freedom of expression in the country. The powers of the Authority as spelt out in clause 7 are widespread. Even though sub-clause 6 provides for a media service provider to challenge the decision of the Authority, it is clear that such challenge will place a heavy burden on the media service provider that it may not survive the aftermath.
In the area of broadcasting, the bill states that political parties will not be issued licences to operate a traditional or online radio or television broadcasting services. Why? Why should political parties which are constituted by citizens not have the right to create means of information sharing and communication to sell their ideas and speak about national issues? This is undemocratic and unfair. After all political parties in democracies operate website and social media platforms where they make audio-visual broadcasts. Furthermore, the bill provides that broadcast licences are issued for every five years. What is the rationale for that?
For internet television service providers such as Paradise TV or Star TV or Kerr Fatou or Fatu Network and Eye Arica TV among others, the bill states that they must first declare their ‘intention’ to the media authority. This ‘intention’ includes stating the policy, nature of the service and programs that will be provided as well as the daily transmission schedule and the time allocated to each program. What is the purpose of such information for the Government other than to micromanage these providers? Yet the bill did not say what happens if the Authority does not like their policy or programs.
This provision is without merit and it is only intended to intimidate these service providers to toe a particular line lest they risk some punishment. It is merely an attempt to make registration requirement for social media. With this particular provision I have no doubts that soon we will see the Government asking citizens to register their Facebook, WhatsApp and Instagram and other social media platforms as we have in Egypt and other countries. Stand up against this obnoxious bill.
What is even more ridiculous about this bill is that it prevents media service providers from carrying out any advertisement for political parties. Why? Political parties do not get any special coverage on GRTS except during election time when IEC allocates them special broadcast. But the ruling party or the President would always get unlimited coverage 365 days in the year! Why therefore should political parties be prevented from buying airtime for advertisements or special coverages of their events by the independent media at any time?
This provision is therefore a calculated attempt to limit the political activities of parties and citizens as well as infringe on freedom of expression and the free press. It is an attempt to also deny media houses from generating income for their business hence undermine their economic viability. All Gambians must stand against this bill as it poses more harm than good to our republic.
I urge National Assembly Members to totally reject this bill when it comes before them on December 2nd. This bill is utterly unnecessary because there is already the PURA Act which handles the issue of registration for radio and television stations. There is also the Information and Communications Act (ICA) which also addresses issues in the information and communication sector such as infrastructure, processes, tools and services. When newspapers operate and raise revenue, they pay tax therefore why should a citizen who wishes to run a newspaper register just for that purpose?
What we require therefore is the review of both the PURA Act and the ICA to bring them in line with democratic principles and international standards. For example, PURA needs to be made truly independent with the power to decide and execute its own decisions without control and interference from the Ministry of Finance or the Office of the President. This includes that the appointment of its Board and Director General be made independent of the President’s control. PURA should be answerable only to the National Assembly and not to the Executive. Alternatively, this bill could be revised in order to make this Independent Media Authority meet standards that guarantee freedom, development and professionalism of the media and freedom of expression. Its current state does not achieve that objective.
In 2016 Tanzania also created a Media Services Act. Immediately this law was challenged by media and human rights organizations in that country before the East Africa Community Court that the law is unconstitutional and violates the sub-regional treaty. The Court in its decision noted that the functions, powers and offences specified in the Act indeed violate the East African Community Treaty. It is obvious that the Gambia Media Services Bill is closely similar to the Tanzania version hence it is therefore obvious that this bill is also in violation of the ECOWAS Treaty and all human rights instruments to which the Gambia is a party.
This bill is conceived with ill-will with the intention to suppress freedom of the media and freedom of expression in the Gambia. If not, one wonders why should the Ministry of Information draft such a bill without the direct and leading involvement of the Gambia Press Union and the Gambia broadcasters’ association among other media organizations in the country? Even when the Gambia Press Union has created a self-regulatory body to monitor the media this bill went ahead to propose a self-regulatory body under the control of the Authority. Is that not a duplication and a disregard of the genuine efforts of the Gambia Press Union?
In all democracies monitoring of media content to ensure the protection of human rights and the promotion of responsible journalism lies with media houses themselves and their organizations. The State is never a regulator of what is said or written or shown in the media because that would constitute a limitation on free press. Rather media houses set their own standards, codes and procedures to ensure that there is always civility, decency, responsibility and justice in what the media reports or broadcasts.
This is why in true democracies there are no sedition laws, insult laws and media offences are decriminalised such that the State does not attack the media for their reporting. Rather if anyone felt offended by a media report that private person or private entity can sue the media for libel, slander or defamation in general. If it is a public entity a rebuttal is issued if it so wishes!
When the Tanzanian Government drafted its Media Services Bill in 2016, Article 19 – a champion of freedom of expression in the world – provided a legal analysis of the document. In their analysis they concluded that there should be no licensing or registration requirement for newspapers and social media. They stated that the Media Services Council set up by the bill just like the Independent Media Authority in the Gambian bill should not be established at all. And if it has to be then the Council should be totally removed from Government control to ensure its independence. Article 19 also noted that the oversight powers of the Tanzania Media Council are too heavy which is similar to the Gambia’s Independent Media Authority.
In light of the foregoing one wonders why therefore anyone should, in his or her right mind, think about creating such a bill for the Gambia. I hope Article 19 will give this bill due consideration as it did for the Tanzania bill. The Gambia Media Services Bill reminds me of the Media Commission Bill of Yaya Jammeh which was equally draconian and anti-democratic. All Gambian journalists then including the current Minister of Information Ebrima Sillah fought very hard to get that bad law repealed. One wonders why then is Minister Ebrima Sillah overseeing the creation of a similar bill when he is the very one in power and in charge of the media in the Gambia today!