Journalists body opposes BC and UCC merger

By HRNJ-Uganda team,

HUMAN RIGHTS NETWORK FOR JOURNALISTS-UGANDA (HRNJ-Uganda) a rights body for journalists in Uganda has opposed the merger of Broadcasting Council (BC) and Uganda Communication Commission (UCC) saying it does not only the respective governing laws but the constitution of the Republic of Uganda

HRNJ-Uganda calls for opposition from journalists saying the action would give the state more powers to gag all medium channels in Uganda including internet.

"We are considering taking the minister in-charge of ICT (Aggrey Awori) to court for usurping powers of the parliament of Uganda" HRNJ-Uganda Programmes Coordinator G.W. Ssebaggala said.

HRNJ-Uganda argument.

The Uganda Communication Commission (UCC) and the Broadcasting council are both statutory bodies created under the Communication Commission Act (Cap 109) and the Electronic Media Act (Cap 104) respectively. The two bodies are charged with independent and complementary roles.

The UCC is a body charged with regulating the communication industry, through issuing of radio, TV and telephone frequencies, licensing telephone operators, monitoring the use of frequencies and generally regulates the communication sector. On the other hand the Broadcasting Council is mandated to regulate the electronic media industry mainly licensing radios and TVs, monitoring the broadcasting standards and providing for effective administration and regulation of radio and TV broadcasting.

Its important to note here that whereas the UCC has mandate to issue frequencies, it does not have mandate to issue an operational license for a TV or radio. The UCC cannot control what is broadcast and the standard of broadcasting generally. On the other hand the UCC has powers over all modes of communication including postal, electronic and others as a regulatory and licensing body while the BC is only limited to electronic media.

On 15^th March 2010, the minister in charge of communication made a directive to have the two bodies merged following a cabinet decision. However, the merger of the two bodies is not only a violation of the constitution and media laws in Uganda but also may lead to violation of human rights in Uganda generally.

The Legality of the Merger

Basically the merger is a violation of the two laws creating the two bodies and is also a violation of Uganda constitution. By merging the two bodies the minister and cabinet are purporting to amend the two laws which provide for the two bodies a role which only belongs to parliament under article 79 of the constitution.

S.12 of the UCC act provides that the commission shall be independent. This means the commission shall not be interfered with either by the minister or anybody. Merging the two bodies is a direct violation of this independence.

Under S.6 of the UCC Act, (also S.9 of Electronic Media Act) members of the commission are appointed by the minister with approval of cabinet. The minister’s directive as it appeared in the Uganda gazette does not show any vetting and approval of member of the council. The same section provides for a council composed of 8 members a fact that is not considered in the ministerial directive.

Both laws provide for ground and procedures under which members of the two bodies can be removed. The proposed merger has an effect of moving members of the two bodies without following the due process of the law and this violates principles of natural justice and fair hearing laid down under article 42 of the Uganda Constitution.

The supremacy of the constitution and requirement for its implementation

The notice by the minister is not the effect that the minister is acting under the directive of the president exercised under article 99(1) of the constitution. The article provides;

“The executive authority of Uganda is vested in the president and shall be exercised in accordance with this constitution and the laws of Uganda”

The article is to the effect that the president works in the accordance with the constitution and the laws of Uganda. Actually article 99(3) makes it a duty for the president to abide by, uphold and safeguard the constitution and the laws of Uganda and to promote the welfare of the citizens and protect the territorial integrity of Uganda

Article 2 of the Uganda constitution provides that the constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda and any law or custom in inconsistent with the constitution void. By making the above order, the president is not only violating the constitution but also laws made there under

The Uganda constitution creates different organs charged with different roles. The organs are separate and independent from each other. These are; parliament with legislative powers (article 79), the executive with administrative powers (Chapter 7, Article 99 and 111). Under article 111 (2) the function of the cabinet is to determine, formulate and implement policy of the government and to perform such other functions as may be conferred by the constitution or any other law, From the foregoing cabinet therefore works based on the requirement of the law.

The directive by the minister violates article 79 of the constitution that provides that parliament has the power to make laws on any matter for peace, order, development and good governance of Uganda and that no person has powers to make a law except under an authority granted by an act of parliament.

By ordering to merge two bodies established by an act of parliament, the minister is attempting to amend an act of parliament which is in direct violation of the above article. The minister is well acting outside the requirement of article 111 as seen above. The merger between UCC and BC can only be done by an act of parliament amending the existing laws and providing for such a merger.

The proposed merger on the other hand brings key human rights issues. The merger will result in making the transitional body a judge, prosecutor and witness in its own cause. The UCC and BC are mandated to handle issues of conflict resulting from use of communication or the media. The present structure will result into the body complaining being the one charged with adjudicating the matter which violates principles of fair trial as set out in article 28 and 42 of the Uganda constitution and the rules of natural justice.

We also concerned that the proposed chairperson of the interim body Eng. Dr. A. M. S. Katahoire was not vetted by cabinet as required by the law. As a result his appointment violates the procedure set out in the UCC Act and Electronic Media Act. The same person is not a fit and proper person to chair a body charged with mediating in conflicts between government and media houses since he owns a media house (Voice of Kigezi) which runs a radio station in western Uganda

Recommendations

1. Cabinet should reverse the minister’s directive and ensure the two bodies are running as set up the law. The cabinet should respect the independence of the two bodies as set out in the laws establishing them
2. Parliament and the Uganda Law Reform Commission should review the laws on UCC and BC to remove the existing ambiguity and conflict in the two laws. Specifically the law should be made clear on the allocation of frequencies, licensing of electronic media and communication systems. The law should also be clear on the independence of the BC which is ambiguous in the existing law
3. Government should maintain the existing regulatory bodies as set out in the law; however the law should provide for an independent and impartial mediatory body responsible for mediating conflicts in the industry. The body should take the judicial role and should not be subject to the control of any body. Effectively, sections of the law making the BC and UCC as mediatory bodies should be repealed.
4. CSOs should advocate for reform of the media law. In the last 2 years Uganda has seen an increased move to curtail media freedom through draconian laws. CSOs should step up efforts to advocate for fair and equitable laws that promote media freedom in Uganda
5. In failure to implement the above (1 to 111); CSOs should consider petitioning the constitutional court for an order reversing the present trend.