JOURNALISM AND THE LAW: WHO WATCHES THE WATCHDOG? BY GBEMIGA OGUNLEYE, FNGE

    Let me begin by thanking the Guild for this kind invitation to share my thoughts on the topic above.

I am particularly touched by the theme of the workshop: Journalism and Digitalisation: The imperative of Good Corporate Governance.

Permit me to thank specially, the executive members of our Guild for their investment in the capacity of members. This is a step in the right direction, for those charged with the responsibility of informing and educating others, must be better informed. I hope that in subsequent workshops, members will be exposed to policy issues, finance and economy and discussions on the causes, course, benefits and challenges of insecurity in the country.

If the pedigree of the selected speakers and discussants is anything to go by, I am positive that at the end of this workshop, participants would have been more enlightened on the imperative of good corporate governance   in the business of journalism.

As a Fellow of the Guild, I have taken the liberty to divide this paper in two parts: Part one will discuss what journalists should know about some of our laws, while part two will discuss the vexed issue of Who watches the Watchdog?

Permit to take you on an excursion on some of the provisions of the Electoral Act 2022 and some provisions in the amended 1999 Constitution.

As Thomas Jefferson, the third President of the United States of America put it:

“Ignorance of the law is no excuse in any country. If it were, laws would lose their effect because it can always be pretended.”

In this political season especially, I believe the media should take more than a passing interest in the law that guides the political process and in the most important law of the land, especially as it affects the practice of our profession.

These, I think, that should be of interest to the contemporary editor.

First, how important are the media?

We quote Jefferson again, who captured this more than two centuries ago, when he wrote: “The opinion of our government being the opinion of the people, the very object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without government, I should not hesitate a moment to prefer the latter.”

I don’t think the media have got a better testimonial than that.

James D. Wolfensohn, the ninth President of the World Bank told the World Press Freedom Committee in 1999:

“A free press is not a luxury; a Free press is at the absolute core of equitable development, because if you cannot enfranchise poor people, if they do not have a right to expression, if there is no searchlight on corruption and inequitable practices, you cannot build consensus needed to bring about change.”

Various sections of the Nigerian constitution (1999) make provision for and protect the operation of the mass media in Nigeria. These include:

Section 22 which states that:

“the press, radio, television and other agencies of the mass media at all times be free to uphold the fundamental contained in this chapter and uphold the responsibility and accountability of the government to the people.”

Section 39 which states that:

“Every person shall be entitled to freedom of expression including freedom to hold opinions and to receive and impact ideas and information without interference.”

This section is one of the outcomes of Article 19 of the Universal Declaration of Fundamental Human Right which states:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Section 39(2) which states that:

“Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions: Provided that no person, other than the Government of the Federation or of a State or any other person or body authorized by the President on the fulfilment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for, any purpose whatsoever.”

Section 41 (1) which states that:

“Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.”

 Section 41(2) which states that:

“Nothing in sub section (1) shall invalidate any law that is

reasonably justifiable in a democratic society –

• “imposing restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or
• Providing for the removal of any person from Nigeria to any other country to
• Be tried outside Nigeria for any criminal offence, or
• Undergo imprisonment outside Nigeria in execution of the sentence of a court of law in respect of a criminal offence of which he has been found guilty; provided that there is a reciprocal agreement between Nigeria and such country in relation to such matter.

     PART I

Let’s now direct our attention to specific provisions of the Electoral Act, the Constitution and any other law that will help the media in holding public officers to account and that should be of interest to journalists. We begin with the Electoral Act.

Electronic Transmission of Results: The INEC Regulations and Guidelines provide for the electronic transmission of result of the polling unit, direct to the collation system.

Mandatory pasting of result sheet: The Regulations also provide for the pasting of the result sheet conspicuously at the polling unit after filling the result sheet.

Another significant innovation in the Regulations is that after casting his/her ballot, the voter is free to remain within the vicinity of the polling unit to witness the sorting and counting of votes and the announcement of results.

 The Regulations and Guidelines also cover over voting.

Where the total number of votes cast at a polling unit exceeds the number of accredited voters, the result of the election for that polling unit shall be declared null and void.

The Guidelines also prohibit phone calls during the collation of results by collation and returning officers. In case of a breach of the peace, natural disasters or emergencies, return for the affected constituencies shall not be made until polls are conducted in the affected polling units.

Let’s examine the provisions of the Electoral Act.

 Section 29 mandates political parties to, not later than 180 days before the date fixed for an election, submit to INEC the list of candidates the parties propose to sponsor for the election. The list must be accompanied with an affidavit indicating that the candidates had complied with the constitutional requirements into that office. Subsection 4 of that section is quite interesting.

It states that “any person may apply to the Commission for a copy of the nomination form, affidavit and any other document submitted by a candidate at an election and the Commission shall, upon payment of a prescribed fee, issue such a person with a certified copy of the document within 14 days.”

That’s not all. Subsection 5 of the section also empowers any aspirant “who participated in the primaries of his political party, who has reasonable ground  to believe that any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirements to contest the election is false, may file a suit at the Federal High Court against that candidate seeking a declaration that the information contained in the affidavit is false.”

Under subsection 6 of the section, “where the court determines that any information contained in the affidavit is false only as it relates to constitutional requirement of eligibility, the Court shall issue an order disqualifying the candidate and the sponsoring political party and then declare the candidate with the second highest number of votes and who satisfies the constitutional requirement as the winner of the election.” And the offending political party will pay a fine of ten million Naira.

Section 31: Withdrawal of candidates

“A candidate may withdraw his or her candidature by notice in writing signed by him and delivered personally by the candidate to the political party that nominated him for the election and the political party shall convey such withdrawal to the Commission not later than 90 days to the election.”

Section 33: Political parties changing candidates

“A political party shall not be allowed to change or substitute its candidate whose name has been submitted under section 29 of this Act, except in the case of death or withdrawal by the candidate.”

Section 47 (3): Accreditation of voters and voting

“Where a smart card reader or any other technological device deployed for accreditation of voters fail to function in any unit and a fresh card reader or technological device is not deployed, the election in that unit shall be cancelled and another election shall be scheduled within 24 hours if the Commission is satisfied that the result of the election in that polling unit will substantially affect the final result of the whole election and declaration of winner in the constituency concerned.”

Section 74: Access to election documents

“The Resident Electoral Commissioner in a state where an election is conducted shall, within 14 days after an application is made to him by any of the parties to an election petition, cause a certified true copy of such document to be issued to the said party.”Failure to comply with this provision attracts a fine of two million Naira or imprisonment for a term of 12 months or both.

Section 84 (12): Political appointees not Eligible as Voting Delegate or Aspirant

No political appointee at any level shall be a voting delegate or be voted for at the Convention or Congress of any political party for that purpose of the nomination of candidates for any election.”

Section 95:  Campaign for election

“Media time shall be allocated equally among the political parties or candidates at similar hours of the day.

At any public electronic media, equal time shall be allotted to all political parties or candidates during prime times at similar hours each day, subject to the payment of appropriate fees.”

Contravention of these provisions attracts a fine of two million Naira for a public media in the first instance and five million Naira for subsequent conviction.

Principal Officers and other officers of the public media are also subject to a fine of one million Naira or imprisonment for a term of six months.

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Section 96: prohibition of broadcast, 24 hours preceding or on polling day

A person, print or electronic medium that broadcasts, publishes, advertises or circulates any material for the purpose of promoting or opposing a particular political party or the election of a particular candidate over the radio, television, newspaper, magazine, handbills or any print or electronic media whatsoever called within twenty-four hours immediately preceding or on polling day, will be liable to a fine of one million Naira.

In the case of an individual, he has the option of a six months’ jail term or the fine and imprisonment.

Section 97: Campaign based on religion or tribe

“A candidate, person or association who engages in campaigning or broadcasting based on religious, tribal, or sectional reason for the purpose of promoting or opposing a particular political party or the election of particular candidate, commits an offence under this Act and is liable on conviction to a maximum fine of one million Naira or imprisonment for a term of 12 months or both; and in the case of a political party, to a maximum fine of ten million Naira.”

Section 115: offences in respect of nomination

“A person who signs a nomination paper or result form as a candidate in more than one constituency at the same election, commits an offence and is liable on conviction to a maximum term of imprisonment for two years.

Section 124: Voting by unregistered person

If you deliberately vote in a constituency where you are not registered, you have committed an offence and the penalty is a fine of N100,000.00 or an imprisonment term of six months or both.

Section 126: offences on election day

No person must exhibit, wear or tender any notice, symbol, photograph or party card referring to the election; No person must use any vehicle bearing the colour or symbol of a political party by any means whatsoever. Contravention attracts a fine of N100,000, or imprisonment for a term of six months.

Section 127: Undue influence

A voter who corruptly accepts or takes money or any other inducement, commits an offence and is liable to a fine of N100,000, or imprisonment for a term of 12 months or both.

Section 138: person elected to remain in office pending determination of appeal

“Where the election is nullified by the Court and notice of appeal against the decision is given within the stipulated period of appeal, the elected candidate shall, notwithstanding the contrary decision of the Court, remain in office and enjoy all the benefits that accrued to the office, pending the determination of the appeal and shall not be sanctioned for the benefits derived while in office.”

1999 Constitution of the Federal Republic of Nigeria as Amended in 2018

POWERS OF THE NATIONAL ASSEMBLY

Section 4 prescribes the power of the National Assembly. It is empowered to make laws for the Federation with respect to any matter in the Exclusive Legislative list, set out in Part 1 of the Second Schedule to the Constitution. There are 68 items on the Exclusive legislative list. The National Assembly has concurrent legislative power with the State Houses of Assembly. That means both the National Assembly and the States Houses of Assembly can legislate on such matters. There are 30 items on the concurrent legislative list. Any matter not contained in either the Exclusive or the Concurrent list is considered as RESIDUAL. That means only the States Houses of Assembly can legislate on such matter.

I begin with Section 52 (1): The section provides that:

“Every member of the Senate or the House of Representatives SHALL, before taking his seat, declare his assets and liabilities as prescribed in this Constitution…”

Did we ask our distinguished Senators and House of Representatives members if they declared their assets and liabilities before taking their seats in the legislature? It’s not too late, 2023 is just around the corner.

A similar provision applies to members of the State’s Houses of Assembly in Section 94 (1) of the Constitution.

We can invoke the provisions of the Freedom of Information Act to compel the Code of Conduct Bureau to disclose the contents of the asset declaration forms of public officers. Corruption, we are agreed is a major national problem.

Section 149 of the Constitution mandates Ministers to declare their assets before they begin to carry out the functions of their office. Section 194 is the equivalent provision in the states. Section 152 and 196 respectively mandates Special Advisers at the Federal and State level to declare their assets before they begin to perform the functions of their office.

However, the media have not thrown its searchlight on the provisions of Section 85 (1) & (2) which creates the office of the Auditor-General of the Federation.  The section provides that:

“the public accounts of the Federation and of all offices and courts of the Federation shall be audited and reported on by the Auditor-General of the Federation who shall submit his reports to the National Assembly…”

Is the above provision being complied with? The media owe it as a duty to bring it to public attention.

Section 85 (4) (5) & (6) provides the necessary ammunition in the fight against corruption. Section 85 (4) states that:

“The Auditor-General shall have power to conduct periodic checks of all government statutory corporations, commissions, authorities, agencies, including all persons and bodies established by an Act of the National Assembly.”

Section 85 (5) provides that:

“The Auditor-General shall within ninety days of receipt of the Accountant-General’s financial statement, submit to each house of the National Assembly responsible for public accounts.”

To ensure that the Auditor-General does his work without looking over his shoulder, section 86 (5) & 87 (1) guarantee him security of tenure. Section 86 (5) states that:

“In the exercise of his functions under this Constitution, the Auditor-General shall not be subject to the direction or control of any other authority or person.”

While section 87 (1) states that the Auditor-General cannot be removed from office without an address to the Senate, supported by two-thirds majority, praying that he be so removed for inability to discharge the functions of his office .Section 125 (6) applies to the States Auditor General.

Qualification for election as President

A person shall be qualified for election to the office of President if “he has been educated up to at least School Certificate level or its equivalent “-Section 131.

The Constitution interprets school certificate or its equivalent to mean:

“Primary School Leaving Certificate or its equivalent; service in the public or private sector in the Federation in any capacity acceptable to INEC for a minimum of ten years; attendance at courses and training in such institutions as may be acceptable to INEC for periods totaling up to a minimum of one year; the ability to read, write, understand and communicate in the English Language to the satisfaction of INEC and any other qualification acceptable by INEC.”

Section 177 of the Constitution is the equivalent qualification for office of the Governor.

Section 226 of the Constitution mandates INEC to prepare every year and submit to the National Assembly a report on the accounts and balance sheet of every political party.  Is INEC complying with this provision? Are the media aware?

Section 230 of the Constitution makes allowance for the Supreme Court to have up to 21 judges. I am not sure the complement of judges in the apex court is more than 17. This has a profound effect in the dispensation of justice. I can confirm to you that there are cases in the Supreme Court since 2010 yet to be heard.

 Section 294 of the Constitution provides that every court in the country must deliver its judgment in writing not later than 90 days after the conclusion of evidence and final address. Do our courts comply with this constitutional imperative?

Fifth Schedule of the Constitution: Paragraphs 6 (1); (3)

A public officer shall not accept gifts, property or benefits of any kind on account of anything done or omitted to be done by him in the discharge of his duties.

A public officer shall only accept personal gifts or benefits from relatives or personal friends to such extent and on such occasions as are recognized by customs. These are by no means exhaustive.

I hold the view that for us as journalists to perform our role as the watchdog of the society effectively, we must familiarize ourselves with certain laws, especially, relevant sections of the Constitution of the Federal Republic of Nigeria. 

PART 2: WHO WATCHES THE WATCHDOG?

From time immemorial, governments, especially in developing countries, have found journalists as convenient scapegoats for their misrule, mismanagement of diversity and the deepening poverty in their countries.

When the consequences of government’s actions and inactions begin to bear fruits and the media begin to report them, the default mode of government officials is to accuse the media of being unpatriotic and they begin to think of ways to curtail the freedom of the press. But to be candid, the media, especially with the digital revolution often play into the hands of its adversaries.

As a result of the collapse of the old business model of the legacy media and the disruption of the new media, the urge to beat competition and be one to come out first with breaking news has been high. The result is the misinformation and disinformation epidemic.

Sadly, the legacy media are not exempted. In their urge to stay afloat and remain in business, some of them shamefully copy and paste news from bloggers and the so-called citizen journalists, whose only qualification to being journalists is their access to a smart phone, I-pads, tablets and cameras.

The mantra now, even among some of the legacy media seems to be publish first and if possible, fact-check later. If the truth be told, the general public too, is concerned about what we serve them as news.

I do know that the Nigerian Press Organisation, too, is equally worried. The fear is real that if the media do not get their acts together, especially, given the current incestuous relationship between the executive and the National Assembly, a draconian regulation might spring up putting the media in check.

This conversation is so urgent and important, especially at this time when the Federal Government is on the edge and it’s at its wit’s end about the frightening and worsening security situation in the country. If the media do not show seriousness about putting in place an effective regulatory regime, it would have handed the initiative to a government very eager to muzzle the media.

Indeed, the Minister of Information, Lai Muhammed has threatened to sanction the BBC and Daily Trust for publishing a documentary titled: THE BANDIT WARLORDS OF ZAMFARA. According to Muhammed: “Let me assure you, they will not get away with this naked glorification of terrorism and banditry in Nigeria. When otherwise reputable platforms like BBC give their platform to terrorists, showing their faces as if they are Nollywood stars…I want to assure them that they won’t get away with it. The appropriate sanctions will be meted.”

If one remembers that the Nigerian government once banned the micro-blogging site, Twitter, then, it’s high time the media began to take the issue of regulation more seriously. This is not to forget that this government proposed an amendment to the rejected Nigerian Press Council Act in 2019 and it also threw its weight behind the proposed draconian Social Media Bill and other Hate Speech Bills, targeted at nailing the coffin of free speech and freedom of expression.

Mr. Segun Odebunmi, who chairs the Information, National Orientation, Ethics and Values Committee, sponsored two media Bills: The Broadcast Amendment Bill which sought to compel social media platforms like Twitter, to register with the National Broadcasting Commission, NBC.

The second is the NPC Amendment Bill, which contains the ridiculous provision, among others, of a jail term or the payment of N250,000.00 (two hundred and fifty thousand Naira) fine for a vendor who sells a newspaper or magazine not registered with the Ministry of Information and Culture.

TO REGULATE OR NOT TO REGULATE

Section 22 of the Nigerian Constitution empowers the media to monitor the Executive, the Legislature and the Judiciary. If the media are saddled with this onerous task, then the media itself should be accountable. There should be a body where aggrieved members of the society can seek justice for media infractions.

I think it is safe to say that the Nigerian Press Organisation, made up of the Newspaper Proprietors Association of Nigeria, NPAN, the Nigerian Guild of Editors, NGE and the Nigerian Union of Journalists, NUJ are agreed on the need to regulate media practice.

The proverbial elephant in the room has been a disagreement on the mode of regulation. Should it be self-regulation, handled solely by the media or should it be one backed by legislation?

BRIEF HISTORY OF MEDIA REGULATION & THE MEDIA’S CASE AGAINST THE NPC ACT

The Olusegun Obasanjo military administration promulgated the Nigerian Press Council Decree in 1978. It was its own way of cutting the press to size for the latter’s critical news reports, editorials and cartoons, critical of the regime. Indeed, there was no love lost between the Head of State and the media. Obasanjo nursed this hatred for the media into retirement, so much so that he caused a signpost to be place at the gate of his Ota farm: “JOURNALISTS AND DOGS ARE NOT WELCOMED”

The Ibrahim Badamasi Babangida military regime promulgated a Nigerian Press Council Amendment Decree in 1992, along the same Obasanjo law. Babangida, too, was subjected to very harsh media criticisms as a result of his ruinous misrule which nearly led to the collapse of the country.

On the eve of his marching the soldiers to the barracks, after 16 years of military rule in 1999, the Head of State, General Abdulsalami Abubakar, promulgated the Nigerian Press Council Decree N0. 60.

It was a grand betrayal of the media, for the media felt it had reached an agreement with the regime on substantial aspects of the decree. But when the Decree was promulgated, it threatened the practice of journalism. Among other obnoxious provisions, it imposed a fine of N250,000.00 (Two Hundred and Fifty Thousand Naira), on publishers of undocumented newspapers or imprisonment for a period of three years.

Section 33 (3) of the Act provides that any person who publishes news established to be fake, commits an offence and is liable on conviction to a fine of Five Million Naira or two-years imprisonment or both and a compensation of Two Million Naira payable to the person group, corporate body, government or any of its agencies which the news was carried against. That’s clearly targeted at the journalist.

Media houses, too, are not spared. Section 33 (4) of the Act provides that any print media house whose medium was used to carry such news as specified in subsection (3) above, is liable on conviction to a fine of Ten Million Naira or closure of such medium for one year or both and a compensation of Twenty Million Naira, payable to the person, group, corporate body, government or any of its agencies which the news was carried against. These are no doubt very draconian.

Apart from this, the Nigerian Press Organisation was strongly opposed to the sections which grants the President the powers to appoint the Chairman and Executive Secretary of the Council and some members of the Council.

THE NPAN POSITION

Concerned about the issue, the NPAN took the Federal Government to court and last year, set up a Media Self-Regulation Committee, to look into the issue and make recommendations. At the end of its deliberation, the Committee recommended CO-Regulation, instead of Self-Regulation. I quote from the Committee’s report: “Although the conversation in the industry has tended towards self-regulation, it is the view of the committee that co-regulation (which incorporates the public) is the way to go for the essential reasons that it reduces distrust and deepens public confidence.”

In arriving at this recommendation, the committee drew insights from the Ghanaian and South African experiments. The committee’s report was detailed on the modus operandi of a CO-regulation regime. Before setting up this committee, the NPAN had set up an Ombudsman in 2010 for members of the public to complain about media excesses.

To demonstrate its seriousness, it appointed a retired judge of the Court of Appeal, Hon. Justice Moronkeji Onalaja as the Ombudsman. The truth is that members of the public rarely made use of the Ombudsman. The NPAN went further to encourage its members to set up Ombudsman desk in their publications to take complaints from members of the public.

WHAT DO EDITORS THINK?

To have a rich and diverse position on the issue, I interviewed some top editors on what they think about media regulation and their preference.

Eniola Bello is the Managing Director of THISDAY newspaper.

According to him: “When you look at the epidemic of fake news, how the media space has been taken over by the so-called citizen journalists, how reports on radio and TV are manipulated, there should be some form of regulation. Social media can cause crisis. But we can’t leave it in the hands of government because of abuse. There will be unnecessary censorship. Stakeholders have to be involved.”

Bello, better known as ENIB, obviously shows his preference for self-regulation but he is worried that “when you can’t enforce a regulation, it isn’t effective.” His preference is for a regulation regime drawn by the Nigerian Press Organisation.

Martin Oloja is the Managing Director of the Guardian. Oloja is totally opposed to the Nigerian Press Council law. According to him, “The word government-backed regulation isn’t the issue. The point is that there must be a Bill based on consensus built by all stakeholders, including government.

“More important is this: the president should not be the officer to nominate the CEO of the regulatory body as we have in the NBC and the current Press Council. The Bill that will be acceptable should work out a mechanism for nominations to the Board of trustees: and the CEO. Any regulator that is government-backed can’t be trusted. We have NCC, NBC, NITDA, etc; all government-backed but no one is happy with their offerings. NCC’S fines are always controversial and NITDA for the ICT industries, doesn’t have stakeholder acceptance.

For Oloja, a consolidation of all the laws that affect media practice would be the way to go. According to him, The National Broadcasting Code, the Nigerian Press Council law and the Cybercrime laws should be consolidated to be the Nigerian Media Council law and the provisions should be more compact as there are enough provisions in the law of libel, slander, cybercrime to prosecute offenders.

“The current National Broadcasting code booklet is heavier and more voluminous than the Constitution of the Federal Republic of Nigeria. We should have a regulatory law that doesn’t have too many provisions that will threaten to criminalize journalism practice.”

Oloja concluded with this piece of advice for journalists: “The concept of self-regulation through the Ombudsman should be solidified by media organisations. This worked before and can still work now as a low-hanging fruit in this regard.”

On his part, Simon Kolawole, warns the media to put its house in order and ensure the workability of self-regulation or risk the enforcement of a government-backed regulation. Kolawole is the publisher of the Cable, an online newspaper.

His words: “Media regulation by the Nigerian government has always been difficult and virtually impossible because of fears of censorship and intimidation. Self-regulation is the most desirable by the media professionals themselves. However, in the absence of effective self-regulation, and with anarchy always a threat, the media may unwittingly be inviting the government to enforce regulations. Resistance will not last forever, if media owners and professionals don’t take self-regulation seriously.”

Ibim Semenitari is the Publisher of Business Eye. Her View: “I believe that the media ought to have some kind of regulation but it should be self-regulating like every other professional organization. Within the media, we should be able to set up appropriate mechanisms to ensure that the interest of everyone is protected and people are ethical and responsible.”

She wants the social media to be regulated too: “My view is that there should be some manner of regulation of the social media space within the framework of the freedom of the press, free media, etc. Along with all those free rights are corresponding responsibilities which, unfortunately appear to be continuously jettisoned in the euphoria of first with the “tale”.”

When reminded that self-regulation has not really worked in the media, her response was that “we have not clearly spelt out procedures and processes for self-regulation. I think we must work to strengthen the process for self-regulation. We must find a way out, otherwise, ours may become a fast disappearing profession with zero code, zero credibility and zero use.”

Semenitari, who was the Commissioner for Information in Rivers State, wants the media to borrow a leaf from other professional bodies: “How do the NMA, NBA and COREN regulate practitioners? We will not be reinventing the wheel. I understand that the poor state of the media industry appears to be affecting standards but we must come together and work to change this. Matters like giving licences to practise, debarring a reporter and sanctioning media organisations or platforms that run afoul of the law could actually help create trust in our self-regulating mechanisms.”

On funding for the self-regulating body, she said “funding could come from professional fees and support from individuals and member organisations. Just like COREN, journalists may also start considering regular paid trainings, conferences and publications.”

Lanre Idowu, editor of the defunct THISWEEK magazine is the publisher of MediaReview. Like his colleagues, he opts for self-regulation but gave conditions for its workability. “It is best to avoid a statutory regulatory mechanism if the media is honest enough to submit to the authority of a self-regulated one.

“Again, if the media can overcome the rascality of playing truancy by NOT complying with the pronouncements of regulatory panels, self-regulation is attractive.  That presupposes that the media will fund its activities.”

He has his reservations: “Can a struggling media be trusted to fund its own regulation adequately? I have my reservations.”. He then proffers a solution: “The media will need the support of other members of civil society and indeed the state, to put in place a regulatory system that stimulates accountability.”

Maureen Chigbo, publisher of the online news magazine, REALnews also shared her views on the issue. She argues that there is no need for any other law to regulate the media as there are already laws in the statute that regulate media practice. Her words: “The foremost law book or guide in the country is the 1999 Constitution as amended. Section 22 maps out the obligations of the press to make government accountable and transparent while Section 39 empowers the media to seek and publish information in the public interest among others. The same Constitution has provisions to protect other people’s right to privacy which the media must abide by.

“Apart from the constitution, there are the laws of libel, defamation, sedition and the Child Rights Act, which among other provisions, provide for how the media can address issues concerning children etc. There are also laws which map out how the media can cover court proceedings. In addition, there is the Cybercrime Act, (2015), which regulates the online media; there is also the Code of Conduct of the NUJ which is also the ethical compass for professional journalists.”

For Chigbo, it is safe to argue that the media are already being regulated.

She added: “If by your question you mean whether there should be further laws to stricture the media, I would humbly submit that there is no need to further gag the press. There are already in existence enough legal instruments to curb the excesses of any erring media practitioner. The law enforcers should not cage, or muzzle the media from doing the job assigned to it by the Constitution.”

A top media manager also shared his views but on condition of anonymity.

He supports self-regulation and dismisses the argument that the public won’t have confidence in self-regulation. According to him: “Within the (non-governmental) public space, I do not believe there is an appreciable lack of confidence in the media’s capacity to self-regulate. The noise about a lack of confidence has largely emanated from government’s quarters. This narrative is driven by the narrative engendered by the failure of successive administration to muzzle the organized media through foul means. Besides government officials and bodies, which other section of society has expressed a lack of confidence in the organized media’s capacity to self-regulate?”

However, he points out that organized media cannot afford to ignore what he calls the cacophony of mischief for two reasons: “One, successive administrations will  always see the absence of self-regulation and media excesses as an opportunity to introduce draconian regulations aimed at muzzling the media, either by sleight of hand or through the back door. Two, media in its current and future battles against government’s attempts to muzzle independent voices, will require public support. The media must be seen as sensitive to public complaints about media excesses and keen to redress wrong.”

So, given the foregoing, he believes there is an urgent imperative for organized media to reappraise the current self-regulatory system that is in place; remove existing inefficiencies, fine-tune the system to reflect best practice, reconstitute operational and supervisory bodies if necessary and get all media organisations to subscribe in writing to the ideals of self-regulation the same way individual countries ratify global conventions.

He concluded with the workings of the proposed self-regulatory body and how it will be funded: “All these processes should be well-publicised in the digital, print and electronic media. The organized media should also stress that the new system which will be managed by an operations team and a supervisory Board appointed by the NUJ, NGE, NPAN and other professional or industry bodies, will embody global best practice on the subject and, in particular, reflect transparency and impartiality. No government body or official should be represented in this self –regulating body.”

On funding, he proposes a consortium of self-respected professional and industry bodies: NUJ, NGE, and NPAN. “A self-regulatory body should not have the powers to impose sanctions on media organisations because it is unlikely to possess the capacity to enforce sanctions other than symbolic non-monetary sanctions. Those who desire more should have recourse to the laws of the land and seek redress in court.”

I also sought the views of an academic on the subject. Professor Lai Oso is a former Dean of the school of communication at the Lagos State University. According to him: “There have always been regulations, e.g. in broadcast ownership, NBC code, laws of libel, cybercrime law, etc. The issue is that the changes the ICT have brought to media practice, production and consumption have created a lot of fear and panic, lading to calls for new regulation, especially of the social media.

“Somehow, the big techs are responding. One, of course, has to be wary of government regulations. No government wants a free press.”

Oso also pointed out there are other forms of regulation apart from the very obvious one. He adds: “We must also factor other subtle but probably more effective forms of regulation and control, e.g. advertising and ownership. Generally, voluntary regulation is preferable.” This means that professional consciousness and adherence to standards and ethics must be very high. This is problematic. Sustainability of the press has become a global issue.

MEDIA REGULATION ABROAD

Since we like to compare our country with the best, let’s briefly examine the practice in other countries.

In the United States, citizens who are aggrieved by media excesses are encouraged to have recourse to the courts. Indeed, the First Amendment to the U.S. Constitution is to the effect that “Congress SHALL MAKE NO LAW respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.”

In the United Kingdom, the press is self-regulated. The Independent Press Standards Organisation (IPSO) regulates most national newspapers and many other media outlets.

LESSONS FROM GHANA

The Ghanaian Constitution guarantees the Freedom and independence of the media. Section 162 of the Constitution has the bold headline: FREEDOM AND INDEPENDENCE OF THE MEDIA. Its provisions are listed below:

1. Freedom and independence of the media are hereby guaranteed

• Subject to this Constitution and any other law not inconsistent with this Constitution, there shall be no censorship in Ghana.

• There shall be no impediments to the establishment of private press or media; and in particular, there shall be no law requiring any person to obtain a licence as a prerequisite to the establishment or operation of a newspaper, journal or other media for mass communication or information.

• Editors and publishers of newspapers and other institutions of the mass media shall not be subject to control or interference by Government, not shall they be penalized or harassed for their editorial opinions and views, or the content of their publications.

• All agencies of the mass media shall, at all times, be free to uphold the principles, provisions and objectives of this Constitution, and shall uphold the responsibility and accountability of the Government to the people of Ghana.

• Any medium for the dissemination of information to the public which publishes a statement about or against any person shall be obliged to publish a rejoinder, if any, from the person in respect of whom the publication was made.

All state-owned media shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions.

The provisions of Articles 162 and 163 of this Constitution are subject to laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons. For the avoidance of doubt, the provisions of this Chapter shall not be taken to limit the enjoyment of any of the fundamental human rights and freedoms guaranteed under Chapter 5 of this Constitution.

(1) There shall be established by Act of Parliament within six months after Parliament first meets after the coming into force of this Constitution, a National Media Commission which shall consist of fifteen members as follows –

(a) one representative each nominated by

(i) the Ghana Bar Association;

(ii) the Publishers and Owners of the Private Press;

(iii) the Ghana Association of Writers and the Ghana Library Association;

(iv) the Christian group (the National Catholic Secretariat, the Christian Council, and the Ghana Pentecostal Council)

(v) the Federation of Muslim Councils and Ahmadiyya Mission;

(vi) the training institutions of journalists and communicators;

((vii) the Ghana Advertising Association and the Institute of Public Relations of Ghana; and

 (viii) the Ghana National Association of Teachers;

(b) two representatives nominated by the Ghana Journalists Association;

 (c) two persons appointed by the President; and 

(d) three persons nominated by Parliament.

(2) The Commission shall elect its own Chairman.

The functions of the National Media Commission are-

(a) to promote and ensure the freedom and independence of the media for mass communication or information;

(b) to take all appropriate measures to ensure the establishment and maintenance of the highest journalistic standards in the mass media, including the investigation, mediation and settlement of complaints made against or by the press or other mass media;

(c) to insulate the state-owned media from governmental control;

(d) to make regulations by constitutional instrument for the registration of newspapers and other publications, except that the regulations shall not provide for the exercise of any direction or control over the professional functions of a person engaged in the production of newspapers or other means of mass communication; and

(e) to perform such other functions as may be prescribed by law not inconsistent with this Constitution.

The Commission shall appoint the chairmen and other members of the governing bodies of public corporations managing the state -owned media in consultation with the President.

Editors of the state-owned media shall be appointed by the governing bodies of the respective corporations in consultation with the Public Services Commission. The Commission shall appoint the officers and other employees of the Commission in consultation with the Public Services Commission.

The administrative expenses of the National Media Commission, including salaries, allowances and pensions payable to or in respect of persons serving with the Commission shall be charged on the Consolidated Fund.

Except as otherwise provided by this Constitution or by any other law not inconsistent with this Constitution, the National Media Commission shall not be subject to the direction or control of any person or authority in the performance of its functions.

Subject to Article 167 of this Constitution, the National Media Commission shall not exercise any control or direction over the professional functions of a person engaged in the production of newspapers or other means of communication.

MY RECOMMENDATION

The government is already too powerful to be encouraged to be in control of a body that sanctions erring journalists or media houses. At the same time, we can’t lose sight of the fact that the media are underperforming and that a lot of journalists and media organisations observe the code of conduct of journalists more in the breach.

This has led to the argument that a government –backed press council is needed to ensure that the media reports truthfully and accurately.

As things stand, the NPO and the Federal Government are at the Court of Appeal over disagreement on the amended press council Act of 1999. The NPO won at the High Court, while the Federal Government appealed the judgment and won at the Court of Appeal. The NPO appealed the Judgment and the case has been at the Supreme Court since 2016.

I have read the Court of Appeal judgment three times and I can confirm that the judgment is sound, well-reasoned and logical. I don’t think the NPO should wait for the outcome of the Supreme Court judgment before it swings into action by meeting with relevant Federal Government officials and members of the National Assembly with a view to taking a second look at the controversial NPC Act and reach an acceptable compromise.

In its judgment, the Court of Appeal said “the Act is not a source of legal censorship of the press. None of the sections of the Act empowers the Council to act in such manner. If the Council oversteps its bounds, their unlawful act would surely be struck down by the Court.”

The court went further to state that “the right to disseminate information carries with it the responsibility to investigate the accuracy of the information. It can never be absolute….It is thus necessary that professional standards be provided by professional bodies in specific terms, to give effect to the constitutional functions of the press, hence the establishment of the Nigerian Press.”

It was the late MKO Abiola who canvassed the need for stakeholders to always work together. He put it in his inimitable way: “If you want to kiss a man you go near him; if you also want to bite him, you also go near him.”

I think the media have been too far away from our lawmakers, especially those of them in the information committees in the National Assembly.I am sure that we didn’t invite any of them to this workshop for instance. Let there be a new rapprochement.

The truth is that peer regulation is the best but many people will agree with me that the government, the public and even journalists have been complaining about the absence of an enforcement mechanism.

Not all the provisions in the amended NPC Act are bad. In fact, the Court of Appeal said the provisions of the Act are common to professional bodies duly established by law.

 I suggest, therefore, that we take the Act as a starting point. Let the NPO appoint a committee to review it and begin to court and lobby members of the National Assembly for both parties to have a win-win situation.

I confess that I am fascinated by Ghana’s media commission. I think we should take a close look at it, work together with the national Assembly with a view to producing an acceptable press council law.