On the Draft Constitution; the glass is half full, half empty for media Part 2

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Media freedoms
The issues in summary:
· The role of the press in society is not recognised
· Press freedom is recognised as a fundamental human right
· The press is accorded a number of fundamental freedoms
Press freedom goes beyond the right of the journalist to gather and publish news or information. The right extends to the public to express views through mass media and to receive information published or broadcast by mass media.

In certain situations, framers of constitutions have declined to give any privilege or special status to the press in the constitutional arrangement. The argument is that a journalist is an ordinary citizen and the rights and freedoms accorded to all and sundry in terms of freedom of expression cover journalists. The Gambia has leaned towards the other side of the fence. The 1997 Constitution clearly gives the press a preferred status and it is more generous than the 1970 Constitution. Section 25 gives press freedom more prominence than we ever had while Section 207 establishes a minimum recognition of the role of the press as Fourth Estate in the governance architecture.

The formulation of Section 25 is a landmark in the development of media law and policy in the country. It states that ‘everyone shall have the right to freedom of speech and expression, which shall include, freedom of the press and other information media’. This provision is part of Chapter 4, which deals with fundamental human rights and it is entrenched.

Besides, it is the first time in post-independence Gambia that a constitutional provision specifically recognises press freedom as a distinct right. By protecting the rights and freedoms of ‘other information media’, the provisions not only cover journalists. Other types of printed and broadcast materials such as books and films are substantially, if not adequately, covered.

A further reading into the 1997 Constitution reveals a more profound articulation of the degree of the constitutional protection for the freedom and responsibility of the press. Section 207, in particular, provides a strong protection to ‘the freedom and independence of the press and other information media’. It also arrogated to the press the duty to serve as watchdogs, guaranteeing that the press ‘shall at all times be free to uphold the principles and objectives of [the] constitution and the responsibility and accountability of government to the people of The Gambia.” And, Section 208, which deals with subsequent section, obligates all state-owned media to provide divergent views and dissenting opinions.

Media rights under draft constitution
Section 45 of the Draft Constitution, 2019, provides for freedom of the media. It contains four sub-sections, dealing with general provisions, protection from any criminal sanctions for expression of opinions, state-owned media and regulation. Section 45(2), which elaborates the rights and freedoms of the press, guarantees the right to own and operate media and to gather and disseminate news and information. It also protects the media from pre-publication censorship and from disclosure of source of confidential information. None of these rights are guaranteed in the 1997 Constitution. And section 45(2) is a bold and daring move: an absolute protection from any attacks from the state for opinions expressed in any media publication.

In essence, the 1970 Constitution broadly recognises the right to freedom of expression but does not guarantee its corollary rights, of press and of information as a distinct human right.

The 1997 Constitution, meanwhile, expanded the right to freedom of expression by recognising press freedom as a distinct human right and giving the press a privileged status, but doesn’t guarantee any protection for journalistic activities and privileges.
The Draft Constitution, in addition to recognising press freedom as a human right, goes as far as providing guarantees for the main journalistic activity of providing news service and the privileges that come with that, but it does not recognise the role of the press in society.
The case being made, therefore, is for the new constitution to provide guarantees for the role and functions of the press or confirm the place of the press in the governance architecture as the basis for providing protection for carrying out journalistic functions, which includes but not limited to provision of news service.

On state-owned media
Simply put, state media refers to a media outlet controlled by the state. This could particularly be seen in the form of appointments to the key decision-making bodies. It is also in its finances and operations, particularly in editorial decision making. State media is often confused with public service media. The two are different. State media may perform public service functions but that does not make it a public service media. In essence, public service media have everything that a state media lacks – inclusive representation, diverse programming, editorial and financial independence.

The Gambia has never had a public service media. We have a longstanding, strong tradition of state-controlled media since independence. The 1997 Constitution provides for the establishment of state-controlled media and obliges it to serve our diverse peoples in a ‘fair’ manner. In practice, the story is different. The president appoints and his appointees serve at his pleasure. Once upon a time, even the cameras are the personal property of the president. In this day, the president does not lay claim to the cameras. Yet the opposition are denied coverage because the cameras are not enough to cater for others, including the president and the opposition.

Let’s get it. There are two known state-owned media in operations. The Gambia Today, a weekly newspaper published only in print and with little circulation has over the years changed its form, size and name severally in the past few years. The Gambia Radio and Television Services (GTRS) is the broadcasting outfit. There is no registration or licencing requirements for state-owned media outlets under the existing relevant laws – Newspaper Registration Act and the Information and Communication Act.

The Gambia Today is published by the Department of Information Services, under the Ministry of Information and Communication Infrastructure (MoICI). The content is provided and edited by government information officers, who are civil servants, though with some freelance contributions. The GTRS is established by an Act of Parliament and the television station shares premises with the Ministry of Information and Communication Infrastructure. This is where transforming it into a public service media should begin.

Clearly, the independence of the state-owned media is not guaranteed. It remains the practice, backed by law, that the president of the republic makes appointment to key positions at the Gambia Radio and Television Services (GRTS). This is done without any public or legislative oversight. It is also clear from experience that the state interferes with the finances of the station, even though the station is financed by GSM levy. It is also clear the operations of the state media were clearly interfered with. There were many instances in the past, where anchors were yanked off the screen and current affairs programmes stopped mid-air simply because the president did not either like to see the face of the anchor or does not like the content of the programme. Really!
Now, let’s see what is being proposed! Section 45(4) of the zero draft provides for state-owned media. This provision is not remarkably different from section 208 of the 1997 Constitution, which guarantees ‘the freedom and independence of the state-owned media’ in a similar fashion. The inadequacy of the protections accorded to the state-owned media in the zero draft is quite troubling. There are legitimate calls for the new constitution to require all state-owned media be turned into public service media. The call is in line with the Declaration of Principles on Freedom of Expression in Africa, which obligates states to transform state-owned broadcasters into public service broadcasters through the legislation rather than the government. This is not just an ideal; it is a particularly important aspect of the media and broader democratic reforms that needed strong backing from the constitutional building process.

Admittedly, the zero draft guarantees the independence and impartiality of state-owned media, but crucially, the appointment processes at governing body and senior-level positions do not support the independence and impartiality of the institutions. Part 5 of Chapter 15 appears to provide an important safeguard. More specifically, section 278 states that the chief executive officer of state-owned enterprises – of which belongs state-owned broadcaster, the Gambia Radio and Television Services – will be appointed by the president, subject to confirmation by the National Assembly. This is positive, but in the context of state-owned media, particularly a publicly funded broadcasting outfit, this safeguard falls short of meeting international standards. Section 277(1) gives excessive discretion to the president to appoint board members of state-owned enterprises, of course, as a usual constitutional nicety, in consultation with the Public Service Commission. The international standards require broad-based participation, including involvement of civil society, in the appointment processes of the governing bodies of publicly funded media outlets, including civil society participation. The constitutional building process should therefore take cognisant of and appreciate the peculiar nature of publicly funded media outlets providing service function and not cover it in the cloak as other state-owned enterprises in terms of providing safeguards from state interference.

The Gambia is faced with a challenging but hopeful reality that the constitutional building process must not ignore. Having a public service media, rather than state-controlled media, has enormous advantages for a developing democracy like ours. States are controlled by governments who are by nature and design, partisan in a way that the muscles of the cleavages that constitute the government are manifest even when masked. A public service media that looks out for everyone, more than profit-oriented private media or state-owned media, is better placed in promoting democracy and social cohesion. Our democratic reforms and transitional justice processes require us to have a publicly funded media that is insulated from the political, financial and operational controls of the government in power. Besides, there is a legitimate expectation from the public and industry for the publicly funded media to be the standard bearer for quality of journalism in the country.