NMC presents position paper on media practice in Ghana

Accra, Nov. 30, GNA - The Sixth National Media Commission (NMC) on the

occasion of its first anniversary has presented its position paper on "A

Conducive Legal Framework for Media Practice in Ghana". Below is the full

text:

FIRST ANNIVERSARY EVENT OF THE 6TH COMMISSION - 30TH NOVEMBER 2010

The Legal Framework for media practice in Ghana

Mr Chair, members of the National Media Commission, our special guest

of honour, distinguished invited guests, our robust media, ladies and

gentlemen.

Already, this National Media Commission has already done a year of its

three-year mandate and today, we meet to take stock of our efforts. In this

presentation, we speak to the topic: 'A Conducive Legal Framework for Media

Practice in Ghana'. In doing so, we will be articulating the concerns of

the National Media Commission on this important matter.

First, we shall refer briefly to the constitutional framework for media

freedom and independence, as the defining background. Next, we will

consider some key bills affecting media freedom and free expression that are

at various stages of the legislative process. And finally we shall look at

some worrying developments in the recent past on the legal front affecting

media freedom and responsibility.

It is not in doubt, Mr Chair, that our Constitution provides a truly

libertarian foundation and framework for freedom of expression as well as

for media freedom and independence. Not only is the right to freedom of

expression guaranteed as a fundamental human right in the very first clause

dealing with such rights Article 21(1) (a), but the framers of the

Constitution, recognising the vital role of free media in our development

and struggle to attain our aspirations as a people carved out a whole

chapter on the mass media. This Chapter guarantees the freedom and

independence of the mass media, prohibits censorship, ensures the editorial

independence of editors, and exhorts the mass media to be the watchdog of

the people over government to ensure accountability to the people. The

Constitution established the National Media Commission as the guardian

principally to promote and ensure the freedom and independence of the mass

media.

Conscious, however, that there are no rights without responsibilities,

the framers of our Constitution, at the same, time charged the National

Media Commission with the mandate of taking "all appropriate measures to

ensure the establishment and maintenance of the highest journalistic

standard in the mass media". The mandate of the National Media Commission

has thus in our view been defined by these two, sometimes competing

interests - media freedom and independence, on the one hand, and

journalistic standards and responsibility, on the other. In the view of the

National Media Commission, the constitutional framework for carrying out

these dual functions is adequate. However, in view of the constitutional

review process and the clamour by sections of the public that the National

Media Commission ought to be better positioned to ensure the highest

journalistic standards, the Commission has taken advantage of its

interaction with the Constitution Review Commission to make a couple of

proposals aimed at strengthening the Media Commission in guaranteeing media

freedom and ensuring the responsibility that goes along with such freedom.

We note, in this regard, the proposals made by government through the

Ministry of Information for a review of the provisions of the Constitution

on the National Media Commission. While the Commission commends the

decision of the Ministry to make public its proposals, the Commission is of

the considered opinion that the truly significant proposal in respect of the

appointment of the Chairman of the Commission unfortunately seeks to bring

the Commission under the influence of the Executive. This is inconsistent

with the spirit and letter of Article 167 of the Constitution. The other

proposals, on the other hand, are not necessary and to a large extent are

already catered for by the current text of the Constitution and the National

Media Commission Act.

The National Media Commission takes this occasion of its first

anniversary to highlight a fundamental precondition for its effectiveness -

adequate funding and resources, both human and material. Without these, no

matter the conducive legal framework it may enjoy, the National Media

Commission will be unable to carry out the important functions the

Constitution has placed on it. We are, therefore, taking this opportunity

of our first anniversary as a Commission to call on all stakeholders, the

Executive, our august Parliament, the Ghana Journalists Association and

other media organisations and of course the good people of Ghana generally

to join hands with the Commission to ensure that it is fully and adequately

resourced and funded to carry out the vital constitutional mandates placed

on it.

Mr Chair, the National Media Commission, at this stage wishes to say a

few words about three bills that are at different stages of the law-making

process. We are referring to the Right to Information Bill, the

Broadcasting Bill and the Defamation Bill. Of these, it has been the Right

to Information Bill that has received, and for good reasons too, the

greatest publicity. But this does not make any less important the other two

bills. This can hardly be the occasion to do a detailed critique of these

bills. We shall thus only highlight some of the important concerns of the

Commission. A more detailed presentation of the Commission's concerns will

be submitted to the relevant authorities and made available to the public.

The National Media Commission is of the respectful view that it is

taking far too long to pass the Right to Information Bill into law so as to

provide the detailed legal mechanism for our people to exercise this

fundamental right that Article 21(1) (f) guarantees to our people. It is to

be noted that as far back as 1946, the United Nations General Assembly

declared that "freedom of information is a fundamental human right and is

the touchstone for the freedoms to which the United Nations is consecrated".

(Almost) 20 years after the coming into effect of the Constitution, there

can be no justification for further delay in passing into law the Right to

Information Bill, which has currently gone through the first reading in

Parliament. We accordingly call on Parliament, to carry out the planned and

necessary public consultations with the people on the contents of the Bill

so that the Bill is enriched with public input and can be passed into law

before the end of 2011, ahead of the 2012 general election. This is

particularly so also, as oil production in commercial quantities is soon to

commence.

In making this call on our august Parliament, we make haste to observe

that there are still provisions in the current Right to Information Bill

that, in our humble view, require further revision to ensure that when it

becomes law, it provides an effective legal mechanism by which our people

can access information on public matters and in respect of their rights in

an open, timely, inexpensive and easy manner, without undue bureaucratic

obstacles.

In this respect, the National Media Commission calls for an Independent

Information Commission that will (1) ensure compliance with provisions of

the Bill when passed into law; (2) carry out mass public education and

training of information officers, develop guidelines and modules for the

effective operation of the law; and (3) that will serve as a body to which

appeals against refusal of applications can be made by the public.

Secondly, the National Media Commission calls on Parliament to look

critically at the exemption clauses to ensure that all exemptions are

reasonably necessary, that they are based on a harm's test and are narrowly

formulated to protect a legitimate public interest. Thirdly, we propose

that the time-lines for disclosure of information requested for should be

shorter, than they are currently. As we all know, we live in an information

age where timely disclosure of information is critical if it is to be

relevant and of any value. There is the need to ensure that the fees to be

paid by an applicant for any information are the barest minimum required for

the reproduction of the information. The public should not be penalized for

how long it takes a public institution to provide information requested.

There is equally the need to extend the coverage of the law to private

corporations that engage in the provision of public services or are funded

by the public purse or whose activities directly impinge on the rights of

individuals. Finally, the National Media Commission calls on Government to

begin the urgent task of re-training our public institutions in the science

of record keeping process and information management and also equipping them

with the necessary infrastructure to carry out this vital task. For without

an effective and efficient system of record keeping and information

management in the public service, a right to information law will prove

ineffective and ineffectual.

Mr Chair, it is well known that in the last 14 odd years since

independent broadcasting became an integral and vital part of our social and

political landscape, the broadcasting landscape has undergone radical

transformation. From a virtual monopoly enjoyed by the then

government-controlled GBC, we now have over 150 FM stations and 10 TV

stations. Yet, to date, Ghana lacks a comprehensive broadcasting law that

sets out clearly the legal framework to regulate this important function in

our society. In the absence of a broadcasting law, the broadcasting sphere

has been inundated by unprofessional conduct, sensationalism and sheer

abusive calumnies and invectives, not to mention in some cases gross sexism

on our television. These problems exist, notwithstanding the undoubted role

of broadcasting in providing the means of informing our people, in providing

a voice to our people, and in the promotion of debate and accountability of

public officers. It is thus necessary that the current Broadcasting Bill

that has been on the burner since 2009 should, like the Right to Information

Bill, be placed before Parliament as early as possible to ensure that we

have the necessary legal framework to address gross infractions on our

airwaves especially in the run-up to the 2012 elections. We believe that

the National Media Commission has an important role to play in ensuring that

our airwaves become the media for civility, tolerance, lively debate,

information and education of our people, and not the vehicle for crude

insults and invectives. The dangers of an unregulated broadcasting system

became all too obvious to us as a people, especially in the run-up to, and

after, the re-run of the presidential elections in December 2008. It is,

therefore, crucial that, as a people, we established the necessary

institutional and legal mechanisms to ensure that the nation is not brought

to the brink of civil strife and national disaster next time round. A

comprehensive broadcasting law that articulates the fundamental principles

and objectives of broadcasting and responsibilities of broadcasters and sets

out clear criteria for the authorisation of broadcast frequencies is an

important part of that mechanism.

In the view of the National Media Commission the current Broadcasting

Bill is essentially guided by the libertarian constitutional framework of

media freedom and also recognises the central role of the Commission in

regulating broadcasting, including powers to sanction broadcasting stations

that breach their conditions of authorisation and basic professional

standards. We, however, think that there are some aspects of the Bill that

clearly require a second look. For example, Article 168 of the Constitution

provides that the National Media Commission shall appoint the chairmen and

other members of the governing bodies of the state-owned media in

consultation with the President. This provision has received judicial

elucidation in the seminal case of the National Media Commission v. the

Attorney General, where the Supreme Court held that, by virtue of this

Article, all members of the Board of Directors of the state-owned media,

including the chief executives thereof, shall be appointed by the Commission

in consultation with the President. It is thus curious that clause 15 (2)

of the current Bill provides that the chief executive of a state-owned

broadcasting serve shall be appointed by the Board in consultation with the

Public Service Commission. This is clearly an error and unconstitutional.

Again, clauses 18 and 19 of the Bill which seek to impose on commercial

broadcasting station programming obligations that are of diverse range and

reflect the diversity of society, that are in a broad range of Ghanaian

languages and which include news and discussions on matters of local,

national and international significance is problematic.

The Media Commission is of the view that while these obligations may be

valid for commercial broadcasting services in the aggregate, they constitute

an warranted interference in the freedom of individual commercial

broadcasting services and their editorial independence both of which are

guaranteed under the Constitution. There is, therefore, the need to

reformulate clauses 18 and 19 of the Bill. Section 32 (5) that gives the

right of appeal to the Commission of Human Rights and Administrative Justice

(CHRAJ) from a refusal of the Media Commission to grant signal and

multi-channel distribution authorization certainly requires a second look.

In the opinion of the National Media Commission any such appeal from a

decision of the Commission should be by way of judicial review to the High

Court. These are just a few of the concerns that the National Media

Commission will be submitting in its memo to the ministerial committee set

up to review the Bill before it receives Cabinet approval for presentation

to Parliament.

Mr Chair, a brief word on the Defamation Bill 2009. It is the view of

the National Media Commission that given the broad expanse of free

expression guaranteed by the Constitution and also the duty placed on the

mass media to be the watchdog of the public interest in ensuring the

accountability of government to the people, the common law principles and

rules of defamation do not provide a satisfactory framework for promoting

freedom of expression while at the same time ensuring that persons who are

defamed have the adequate legal remedies for vindicating their hard-earned

reputation and good name. Thus, in the view of the National Media

Commission, there is a need for the passage of a Defamation Act that is

consistent with the spirit and letter of the Constitution on freedom of

expression and media freedom. Unfortunately, however, the current

Defamation Bill does not seem to be activated by these concerns and appears

unduly punitive in its general thrust and in some respect involves a step

backward from English common law principles. Here again, the National Media

Commission will be engaging with the Attorney-General's Department with the

object of getting a revision of some of the problematic clauses of this

Bill. Suffice it to observe here that the Bill tends to blur the

distinction between absolute privilege and qualified privilege, as

traditionally understood. Similarly, it conflates civil defamation with the

civil wrong of invasion of privacy. This is not very helpful. What is

more, the remedies for defamation and the powers granted successful

plaintiffs in a defamation action in the Bill are unduly intrusive and

oppressive of the rights of others and can hardly promote a healthy climate

media freedom and responsibility.

The clause that provides for bringing a defamation suit in respect of a

publication that incites hatred against other members of a community is

rather odd, as even at common law, such an action could not be maintained.

There may very well be the need for a law that penalizes hate speech and

publications. But this must be the subject of a specific law. In the same

way, the clause 2 (d) (ii) which makes any publication of a statement or

report that encourages disrespect of the nationhood of Ghana, the national

symbols or emblem of the Republic actionable defamation is simply going

rather too far. We are aware that the Constitution in Article 21 (4) (e)

makes lawful any legislation that is reasonably required to safeguard the

people of Ghana against "the teaching or propagation of a doctrine which

exhibits or encourages disrespect for the nationhood of Ghana, the national

symbols or emblems or incites hatred against other members of the

community." But just a single statement or report cannot be regarded as

the teaching or propagation of a doctrine. In a sense, there is the

troubling sense that this is an attempt to bring back through the back door

the much maligned and condemned criminal libel and seditious laws. The

clause 12 (c) of the Defamation Bill is also clearly unconstitutional and a

violation of Article 127 (3) in so far as it seeks to make justices, judges,

magistrates etc. open to defamation suits where what they say or write in

the course of judicial proceedings are "not consistent with the exercise of

judicial power or the independence, dignity or effectiveness of the court."

While we do not think that judicial officers should have a carte blanche to

damage the reputation of others in the course of judicial proceedings, we

believe there already exist other effective and less harmful procedures for

addressing such cases. Our judges should be free to carry out their

judicial functions without the threat of civil defamation suits hanging over

them.

Finally, Mr Chair, a few observations are called for in respect of

recent arrests and prosecution of persons under the now notorious sections

207 and 208 of the Criminal Offences Act 1960 (Act 29). For the avoidance

of doubt, the Media Commission wishes to reiterate its unqualified

condemnation of persons who publish false news and defamatory matter

affecting the reputation of others. This cannot be the way to build our

democracy and the right to freedom of expression is not to give a licence to

such malicious publications. However, the Commission wishes to draw

attention to what might appear as the selective usage of these laws by the

Police. This does not promote the vital principle of equality of persons

before the law. We appeal to the Ghana Police Service to desist from

applying the Law in a discriminating manner in violation of Article 17 of

the Constitution. Furthermore, the occasions on which sections 207 and 208

have been called in aid of policing have not been necessarily been the most

likely of cases. The impression should not be created that with the repeal

of the criminal and seditious libel laws, the Police are busy combing the

Criminal Offences Act to find suitable substitutes for these much condemned

repressive laws. Finally, the constitutional credentials of these laws may

very well be suspect.

In view of these development, the National Media Commission has decided

to commission a review of our laws to identify those anti-democratic

offences that are still on our statute books and which are not reasonably

required in the interest of national security, public order, public morality

and for the protection of the reputation and rights of others and which

involve a disproportionate breach of the right to freedom of expression. We

appeal to Parliament, the Executive and Ghanaian society as a whole to

support this important initiative.

Thank you; (end text).

30 Nov. 10