Content Bill row; Supreme Court orders AG, NMC to file statement

The Supreme Court has ordered the Attorney General (AG) and National Media Commission (NMC) to within 14 days file their statement of cases in a matter requiring media owners to seek content approval from the Commission before publication.

The AG had gone to court with a motion on notice praying for extension to file their statement of case.

Mrs. Grace Ewoo, a Principal State Attorney said the state had filed their affidavit in respect of the matter on February 24, this year.

Mr Thaddeus Sory who also represented the NMC, prayed the Court to give the Commission some days to file their statement of case.

Mr Kweku Owusu Agyemang who represented Ghana Independent Broadcasters Association (GIBA) did not object to the submissions of the AG and NMC.

GIBA had also gone to Court to strike out a new law which requires media owners to seek content approval from the NMC before publication.

GIBA specifically wants the apex court to expunge regulations 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 22 of the NMC (Content Standards) Regulations 2015 (LI 2224) as being inconsistent with the 1992 Constitution which guarantees unfettered media freedom.

The regulations in contention basically require media owners to apply for content authorization, submit programme guide and content for approval and go by a set of rules stipulated by the NMC or in default pay a fine or serve between two and five years in jail.

Dissatisfied with the new regulations and what they said was their threat to press freedom, GIBA has caused its lawyer, Mr Kwame Boateng, to file a writ to invoke the original jurisdiction of the Supreme Court.

It was seeking a “declaration that upon a true and proper interpretation of articles 162 (1), 162 (2), 162 (4), 167 (d) and 173 of the 1992 Constitution, neither the government of Ghana nor any state institution created under the 1992 Constitution, including the NMC, shall engage in acts or exercise any powers that are likely to amount to censorship, control and direction of the institutions of mass media communication in Ghana.

“No institutions of mass media communication shall be criminally penalized for their failure to procure authorization for the content of their publication from the government or any state institution created under the 1992 Constitution, including the NMC,” the GIBA reliefs said.

The applicant, that joined the Attorney-General as the first defendant, is seeking a declaration that the said regulations 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 22 of the NMC (Content Standards) Regulations 2015( LI 2224) in so far as their cumulative effect was to give the NMC the power to determine which content can be conveyed by operators on a public electronic communications network, amounts to censorship of the media and same contravenes articles 162 (1) and (2) of the 1992 Constitution and is, therefore, void.

“A declaration that the regulations 3,4, 5, 6, 7, 8,9, 10, 11, 12, and 22 of the National Media Commission (Contents Standards) Regulations 2015, LI 2224, in so far as they give the NMC the power to determine content that can be conveyed by the operators on a public electronic communications network.

“A public electronic communications or a broadcasting service amounts to control and direction over the professional functions of the operators and same contravenes and is inconsistent with Article 163 (4) and Article 167(d) and Article 173 of the 1992 Constitution and, therefore, void.

“A declaration that the provisions under the standard guidelines referred to under Regulation 12 and specifically listed under the third schedule of the NMC (Content Standards) Regulations 2015 (LI 2224) which prefers criminal sanctions upon infractions of the standard guidelines are legally vague and also inconsistent with the spirit and letter of Article 162 (4) and Article 167 (d) of the 1992 Constitution and therefore void.

“An order deleting, expunging or striking out regulations 3, 4, 5, 6, 7, 8, 9, 10, 11 and 22 of the National Media Commission (Content Standards) Regulations 2015( LI 2224) on the grounds that they are unconstitutional,” the applicant stated.

A statement of case accompanying the writ contended that the 1992 Constitution did not lose sight of its Pride of place among the laws of Ghana.

“It is the supreme law of the land in which all other laws find their expression. …, to this extent, any law that is not in consonance with the spirit and letter of this Constitution must be declared void to the extent of the inconsistency,” the statement said.

To buttress the position on the supremacy of the 1992 Constitution, it quoted Article 1(2) of the 1992 Constitution, which states: “This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void”.

The applicant conceded that despite the fact that the NMC might feel the need to ensure high standards for journalism and broadcasting in the country, the need for setting those standards “cannot be achieved with constitutional infractions”.

It further argued that the provisions, which said media operators should not broadcast materials unsuitable for children, were too vague, as they did not define what publication of “unsuitable” material meant.

On October 29, 2015, the NMC, acting under its powers under Article 167 of the 1992 Constitution, drafted what it referred to as the NMC (Content Standards) Regulations 2015, submitted same to Parliament and the same was published in the Gazette on October 28, 2015 and came into force on December 9, 2015 as the NMC (Content Standards) Regulations, 2015, LI 2224.

“The plaintiff, as a registered umbrella body for most of the electronic private broadcasters in the country, upon receipt and perusal of the law, is of the view that the said regulations are in breach of article 162 (1) and (2), 162 (4) and 173 of the 1992 Constitution,” the applicant held.

According to the applicant, it wrote to the NMC to draw its attention to alleged inconsistency of certain provisions of LI 2224 with the 1992 Constitution, but those concerns remain unaddressed, as the NMC has defended the contentious provisions on various media outlets.