On the Draft Constitution; the glass is half full, half empty for media Part 3

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By Saikou Jammeh

On media regulation
· The zero draft establishes a statutory regulatory body for journalist
· The formulation of the provision is worse than that of the 1997 Constitution, which was repealed after widespread condemnation
· Statutory regulation of journalism is an uneasy everywhere, particularly in Gambia, where it brings back memories of the killing of Deyda Hydara
· The zero draft fails to provide a legal underpinning to the existing media self-regulatory body called Media Council of The Gambia
Regulation of the media is essential in upholding the principles of the freedom and independence of the media while safeguarding freedom of expression. The debate however continues as regards the best system of regulation for the media – state-sanctioned or self-regulation, or a combination of the two systems.

There are fears – justifiably and evidently so – that government interference in determining how journalism should be conducted leads to media restrictions. There are many instances where governments hide behind regulation to suppress dissent. The other side of the argument is that self-regulatory systems often lack policing powers as it relies on the goodwill of media personnel who, by the nature of their calling, are headstrong. What is clear, though, is that international standards generally favour self-regulation for the media as the best way to monitor compliance and sanction non-compliance of professional and ethical standards in journalism. Self-regulation is found to be cheaper, shorter and a more efficient way of dealing with complaints, besides the fact that it preserves media freedom, particularly in new democracies and allows journalists to internalise ethical standards. More impressively, in an era of media convergence, self-regulation is found to be the most efficient way to regulate editorial content across mainstream media platforms – print, broadcast and online.

Self-regulation isn’t a perfect system. In fact, it has in many instances been proven to be very ineffective. But democracies around the world have, time and again, chosen to err on the side of caution by accepting to err on the side of democracy, rather than putting in place good-intentioned regulatory frameworks that could be abused to pave way for undue restrictions.

Granted, even where self-regulation exists, it cannot take the place of statutory or state-sanctioned regulation, which is favoured in terms of licencing, copyrights and programmatic issues only to the extent of meeting public service functions for utilizing public resources and issues of public health and morals. The argument in favour of this kind of regulation, particularly for broadcast media, mainly is that the spectrum which is used for broadcasting is a limited public resource and should be fairly managed. Questions are now being asked whether this position will be tenable for a very long time, given that online platforms, which can and are now being used for broadcasting, are not ‘limited public resource’. Of course, copyright and the Radio Mille Collines affair will continue to haunt us when developing policies around broadcasting.

Regulation of the media in The Gambia is an uneasy subject. The 1997 Constitution had obligated The Gambia to establish a statutory regulatory body: National Media Commission. In 2002, the government passed an Act establishing the Commission. The intentions of the government were very clearly reflected in what was seen as excessive powers given to the Commission. Among others, the Commission was given powers to annually register journalists and to force journalists to reveal sources of confidential information.

The decisions of the Commission are final and could not be challenged even in a court of law. It therefore was not a surprise that the establishment of the Commission triggered widespread local and international outcry. The journalists resisted and the then president Yahya Jammeh responded that they ‘must comply or do not print or go to hell’. The GPU challenged the constitutionality of the Commission at the Supreme Court of the Gambia. In the end, the National Assembly, in response to growing concerns, repealed the National Media Commission Act as well as the constitutional provision that obligated the setting up of the Commission. The fight was won at a heavy price. Deyda Hydara, a prominent journalist in the forefront of the campaign against the Commission, was shot and killed.
Currently, there are two different pieces of legislations covering licensing and registration of news and information media outlets. There is the Newspaper Registration Act of 1934 and amended in 2004. This requires media outlets to provide a bond of half a million dalasis for registration purposes. Additionally, the Information and Communication Act provides for regulation of the broadcast media by a multi-sector regulator, Public Utilities Regulatory Authority (PURA). Several studies and reviews of media laws, including the one recently commissioned by the government, have found the broadcast licensing and newspaper registration regime in the Gambia, to be inconsistent with acceptable international standards for the regulation of the media for two reasons:

1) international law frowns upon special registration requirements for newspapers. Registration under Companies Act suffices. Moreover, a fee of half a million dalasis bond is no doubt restrictive in a poor country where more than 60 per cent of the population lives below the poverty line. Freedom of expression and press freedom are thus very expensive commodity.

2) the process of registration and licencing is not independent. The Attorney General’s Office and Ministry of Justice is responsible for registration under the Newspaper Registration Act while the Minister for Information and Communication Infrastructure approves licenses for television and radio broadcasting under the Information and Communication Act, 2009. The ministers are political appointees and the process is done without any acceptable public oversight. This is besides the fact in the case of broadcast regulation, the regulator is not properly constituted. The board has no civil society or media representative and all of them were appointed by the head of state.

The standards and procedures for media regulation in The Gambia are demonstrably at variance with international standards. The current constitutional building process is poised not to make any difference.

Regulation under the draft constitution
Section 45(6) of the zero draft makes provision for the establishment of an independent media regulator. This is by far the most dangerous provision in the entire draft constitution. The regular is tasked with regulating broadcast and communication services, ensuring fairness and diversity and, problematically, setting media standards. The formulation of this provision places regulation of editorial content in the hands of a body constituted entirely by the state without any guarantee or adequate constitutional safeguards for its independence. The interpretation of section 277 and 278, as regards state-owned media, applies here in the sense that the safeguards are insufficient enough to prevent the state from unduly interfering in the affairs of the body. In fact, the formulation of section 45 is worse than what was the National Media Commission clause in the 1997 Constitution, which was eventually repealed by parliament after widespread criticism and opposition.

Unlike the draft constitution, the 1997 constitution made a provision for civil society participation in the constituting the establishment media commission and had made it a requirement for The Gambia Press Union to appoint a representative on the Commission. Yet, the zero draft does not even name the regulator among independent commissions such as National Human Rights Commission, which are insulated from state interference.
So, in essence, there already is in place a state-sanctioned regulatory body in PURA, a multi-sector regulator. Plans however are advanced to put in place an independent media regulator in the shape of what is being proposed in the draft constitution. This has temporally been abandoned to allow for more consultation after taking into account concerns raised over its suitability.

With regards to self-regulation, there is a widely circulated industry-wide code of conduct for media professionals. This is currently being reviewed so as to meet the diverse needs of the ever-changing, rapidly growing industry. What was lacking was a body to be responsible for monitoring and enforcement of professional and ethical standards. That body has now been put in place and is about to start receiving complaints. The constitutional building process certainly is aware of these developments and could have and should have given the self-regulatory body the much needed legal underpinning with adequate safeguards.