By HRNJ-Uganda News Team
HUMAN RIGHTS NETWORK FOR JOURNALISTS-UGANDA (HRNJ-Uganda) a journalists' rights protection body has termed a new media bill as a "law of rule system" which the state want to use to gag the media. "Electronic media since its liberalization has been a target of the state since it was a source of information for majority Ugandans but this turn is for print and other medium" HRNJ-Uganda Programmes Coordinator G.W.Ssebaggala said.
The draft Bill proposes to make changes to the composition of both the Council and the Disciplinary Committee. If implemented, the Council would consist of the following members: a chairperson, appointed by the Minister (a new addition), a senior official from the Ministry, one, instead of two, mass communications scholars, still appointed by the Minister in consultation with the Institute, a representative nominated by the Uganda Newspaper Editors and Proprietors Association, a new representative of private sector newspapers, two representatives of the electronic media, two representatives of the National Institute of Journalists of Uganda, only two members of the public who are not journalists, both appointed by the Minister, and a lawyer now appointed by the Minister in consultation with the Uganda Law Society (section 4 of the Bill, amending section 8 of the Act). The Council would thus comprise 12 members, six of which were appointed by the Minister, only two of which required consultation with other bodies. Both the chairperson and the secretary would be directly appointed by the Minister. As a result, the control of the Minister over the Council would be substantially increased.
Section 7 of the draft Bill would amend section 30 of the Act, stipulating the composition of the Disciplinary Committee, by adding five new members, in addition to the six Council members already on the Committee. Specifically, it would add a lawyer nominated by the Uganda Law Society, a representative of private sector newspapers, two members of the public who are not journalists, and a mass communications scholar, appointed by the Minister.
Analysis
The need for bodies with regulatory powers over the media to be independent has been noted. Given the Council’s draconian powers, including directly to license journalists and indirectly to control the Disciplinary Committee (even under the new proposed rules),
this is particularly important. Instead of bolstering the independence of the Council, the new proposals actually undermine it.
Increasing the composition of the Disciplinary Committee as proposed would slightly enhance its independence. However, depending on how the two members of the public are to be appointed (which is not clear and this may be by the Minister), potentially only two of the now eleven members would come from outside the Council and be appointed by civil society groups. This is clearly insufficient to ensure the independence of the Committee.
Control of News Paper
The most significant, and alarming, changes proposed in the draft Bill are in relation to the registration and licensing of newspapers. Section 5 expands the powers of the Council to include registering and licensing newspapers. Pursuant to section 2, newspapers would be prohibited from operating unless they have been registered by the Council. The Bill does not elaborate any requirements or procedures for registration.
Section 6 of the Bill further requires newspapers to be licensed by the Council and imposes harsh sanctions for breach of this rule. The considerations to be taken into account when deciding whether or not to issue a licence to a newspaper include whether it has access to adequate technical facilities and the “social, cultural and economic values of the newspaper”. A refusal to grant a licence shall be in writing and provide reasons, and may be appealed against before the High Court. Licences are valid for one year and may be renewed. They may also be revoked, for breach of a number of vague content rules (see below).
Section 5 of the Bill also gives the Council the power to regulate investment in the print media sector, as well as to regulate foreign investment in the sector, including by “limiting the involvement of foreign media in the print industry”. Neither of these powers is subject to any formal constraints.
Analysis
International law recognises that licensing of broadcasters is necessary, if only to prevent chaos in the airwaves, but it rules out licensing of newspapers. It even regards registration systems for the print media with great suspicion. Principle VIII (1) of the African Declaration states:
Any registration system for the print media shall not impose substantive restrictions on the right to freedom of expression.
And the 2003 Joint Declaration of the special mandates on freedom of expression states:
Imposing special registration requirements on the print media is unnecessary and may be abused and should be avoided. Registration systems which allow for discretion to refuse registration, which impose substantive conditions on the print media or which are overseen by bodies which are not independent of government are particularly problematical.
Registration of the print media is unnecessary and may be abused, and, as a result, is not required in many countries. Human Rights Network for Journalists-Uganda (HRNJ-Uganda) recommends that the print media not be required to register. Under international law, a technical registration requirement for the print media may not breach the guarantee of freedom of expression as long as it meets the following conditions:
- there is no discretion to refuse registration, once the requisite information has been provided;
- the system does not impose substantive conditions upon the media;
- the system is not excessively onerous; and
- the system is administered by a body which is independent of government.
The proposed licensing system for newspapers clearly breaches these rules. The issuance of licences is dependent upon the discretion of the Council, and includes vague and highly subjective criteria such as social, cultural and economic values. Licences may also be revoked for breach of equally vague and subjective content rules. These problems are enhanced by the fact that newspapers must apply for their licences on an annual basis. This is effectively a repressive and discretionary system for banning undesirable newspapers, which is completely illegitimate.
It is unclear what the registration system for newspapers might consist of, and so it is not possible to assess it against the standards set out above. It may be noted, however, that the Council is not an independent body. Furthermore, the good faith of the government in imposing a registration requirement has to be questioned given that it has unnecessarily been layered on top of a very repressive licensing system.
Some regulation of print media ownership may be necessary to prevent undue concentration of ownership in this sector, or between this sector and broadcasting. However, the powers of the Council to regulate both local and foreign investment in the print media sector are completely undefined and are not even linked to the objective of preventing undue concentration of ownership. Furthermore, the rule on foreign ownership suggests an overall suspicion of foreign involvement, as opposed to some more legitimate social goal. Although excessive foreign control may be a matter of concern, in general, foreign investment can be a very important source of funding, as well as of expertise and access to foreign content, for media outlets.
Recommendations:
· The proposed licensing system for newspapers should be removed from the draft Bill.
· The proposed registration system should either be removed entirely, or completely revised to bring it into line with international standards, including by making it clear that the Council has no discretion to refuse to register a newspaper.
The powers of the Council to regulate investment in the print media sector should either be removed entirely or constrained to pursuing legitimate objectives, such as the prevention of undue control by one individual over the print media sector.
Content Regulation
Section 3 of the draft Bill would add to the functions of an editor, as spelt out in section 6 of the Act, the obligation to ensure that nothing “prejudicial to the national security” is published. Section 9 of the Bill would add a new section to the Act making it a crime to publish material that is “prejudicial to national security or stability and unity or utterances that are injurious to relations between
Section 6(7) of the draft Bill sets out a number of grounds for revoking a newspaper’s licence. These include, once again, publishing material that is “prejudicial to national security, stability and unity” or to “
Analysis
The obsessive focus in the draft Bill with protecting national security is immediately apparent. This is an undefined term which is simply too vague to be legitimate as a restriction on freedom of expression, let alone to serve as the basis for a non-independent administrative body such as the Council to revoke the licence of a newspaper. Newspapers should be free to engage in reporting or criticism on matters relating to national security. In most cases, such criticism actually enhances security, as it is often only when problems are exposed in this way that they are taken seriously by security officials.
The references to relations with other countries and economic sabotage are equally problematical. It is often actually a professional obligation for newspapers to publish information in the public interest which governments may deem to harm relations with foreign countries or be injurious to the economy. This might include the exposure of corruption, mismanagement of the economy or even the simple fact of an increasing rate of unemployment. It is clearly not legitimate to prohibit the publication of these types of information.
Furthermore, to the extent that it is legitimate to criminalise the dissemination of information – for example, hate speech – this should be done through a law of general application rather than a media specific law. If an interest is worthy of criminal protection, it will need to be protected against all forms of dissemination, not just publication in the media.
Recommendation:
All content restrictions – including those referring to national security, relations with other states and economic sabotage – should be removed from the draft Bill.
Sanctions
The draft Bill provides for a number of harsh sanctions for breach of its provisions. Pursuant to section 2, anyone who operates a newspaper without registering it may be fined up to 48 currency points, set by Schedule 1A at 20,000 shillings (a total of approximately USD445), and/or imprisoned for up to two years. Pursuant to section 6(9), operating a newspaper without a licence or in breach of a licence condition would attract the same sanction. Section 9(3) also provides for the same sanction for publishing the material prohibited by that section, while section 6(7) provides for licence revocation for publishing prohibited material.
Analysis
These are excessively harsh sanctions for breach of provisions which are, of themselves, as described above, illegitimate. As noted, the system of licensing and revocation of licences envisaged by the draft Bill would allow for extensive government control over any newspaper which it did not favour. A prison sentence of two years simply for operating a newspaper in breach of any licence condition, which might be something relatively minor, also cannot be justified.
Recommendation:
The system of sanctions in the draft Bill should be substantially revised so that it only provides for proportionate sanctions for breach of legitimate rules.
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