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).