Wednesday, December 8, 2010


The government is proposing a new regime of laws in amendments to the existing media laws- that will add more restrictions to the already delicate media environment in Uganda. Legal experts and media practioners see the new proposed media legal regime as being targeted to beat the media into line ahead of the 2011 elections.

Despite its acclaimed popularity, the NRM government has always been wary of free and independent media. But for all the government’s unconstitutional maneuvers to curtail free speech, the draconian proposed amendments should not even be given a hearing even in our national parliament .

This is for the simple reason that government’s resolve to beat the media into submission does not rhyme with democratic values. It also against the universally accepted legal and moral principles that allow individuals the inherent right to freedom of speech and expression. The same principles apply to the media because a free press is very important in a democratic society to guard against the excesses of the state or government presided over by elected leaders.

Constitutional and media experts have argued that if the amendments are passed as drafted ,they would restrict freedom of expression in Uganda and impede the ability of journalists and media outlets to fulfill their democratic roles by imposing unnecessarily onerous registration and licensing requirements on both the print and electronic ,broadcasting media. The Constitution of Uganda in articles 27,41, provides that the people of Uganda have the right to express themselves freely and access information. These rights as stated in the constitution are inherent to the individual and cannot be granted by the state.

But the proposed laws contradict these provisions of the constitution. For instance under the proposed amendments , newspapers are required to apply for annual licensing . But worse still, Media Council , the regulatory body , is given broader powers to withdraw licenses at will if it deems the actions of the media house to “undermine national security, stability, or unity,” and are “against Uganda’s foreign relations, and the country’s economy”.

These are contestable constructs that would have to be defined clearly and narrowly if they are to pass the constitutional test for imposing limitations on right to freedom of expression. Requiring the annual licensing of newspapers by the Media Council puts undue burden on the profession and on the industry, thereby restricting the public’s broader right to freedom of expression and access to information.
And giving the Media Council the absolute discretion to define those terms as a condition for renewal of a license or as a basis for penal action would make the regulator an absolute determinant of what should constitute media content. This amounts to a “substantive restriction” on freedom of expression as stated in constitutional and supreme courts leading precedents.

In the land mark Supreme Court case of of Charles Onyango- Obbo and Andrew Mujuni Mwenda vs. Attorney General (AG) court stated: @ It’s difficult to imagine a guaranteed right more important to democratic society than freedom of expression. Indeed , a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions.” Court emphasized the fact that press freedom and the individual’s right to express ideas and thoughts freely cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. This means that the anticipated danger to national security and public order should not be remote, conjectural or farfetched.

However it should be noted that in Uganda and with the new proposed amendments , the government continues to treat press freedoms as a matter of strategic public bluster and not a constitutional guarantee. This is because the state functionaries are averse to public criticism because of the sometimes, irrational and, in some cases, undemocratic manner in which they run government.

But the primary objective of freedom of expression is to empower people to participate in decisions that affect their livelihood. And this empowerment cannot be over-emphasised especially now that we are heading into the general elections. This is especially true in the context of the forthcoming elections where candidates seeking elective national political offices should address the issues that are central to the Ugandan public.. In other words, freedoms of speech, expression and the media are intended to promote accountability and transparency in governance.
In the same Supreme Court case cited above , the learned judges cemented this principle of the law by stating that “ in a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.

But a democracy means that there will always be two or more competing views- political and otherwise- to allow those who are governed the freedom to make a free choice on how they should be led. The media is just a vehicle by which these democratic ideas are conveyed. The proposed amendments therefore go against the wisdom of the court judgment in the Onyango Obbo case.

And on the balance, government has the largest share of the media platform in this country. By having a national radio and television network with the widest reach, and owning majority shares in the Vision Media Group that boasts of two daily newspapers, regional publications s and a string of radio stations, the government far outcompetes its political rivals in having its political philosophies and policies disseminated to the masses.

In any case, governments all over the world can only sell their policies to the public and the media for support. They can force public or pro-government media to toe the official line to manufacture consent but they cannot force the audience to buy those policies wholesale.

And one wonders why government is pushing for the amendments just months to the general elections when there is already a broad legal regime to govern the media in this country. The Press and Journalists Act and the Electronic Media Act are laws which provide for regulation of journalists in practice and set ethical standards for their conduct. These laws were enacted after consultations with all the stakeholders who included among others , government officials members of parliament on the parliamentary legal committee, the civil society organizations , the public, journalists and managers of media houses.

The existing legal framework governing the media laws also put in place disciplinary procedures and measures that can be taken against errant media and journalists. The problem is that the state has done very little to enforce these laws to ensure fairness on part of the media and the aggrieved public.
And when they have chosen to apply the provisions of the law the enforcing agencies, in this case , the Media and the Broadcasting Councils have done so -albeit selectively and on political instigation. And their decisions have been generally outrageous. In the recent two cases of State vs Red Pepper in the Gaddafi-Tooro Queen Mother case and suspension of journalists and closure of radio stations following the September riots- the accused persons and management of the closed radio station where never given a hearing. Thus the principle of fair trial and rule of natural justice which allows for an accused person to be heard before an impartial tribunal were never followed. All this was in fragrant violation of the national constitution.

No wonder there is been continued agitation since the bloody September riots for the opening of the Central Broadcasting Station and Buganda privately owned radio. Government on October 22 agreed to re-open the radio without any conditions after almost 11 months since it was closed down. The closing of the station led to loss of jobs for many young people and deprived the public of virtual information needed to make informed decisions. The country does not need to go back to these dark days since neither party in the CBS case has gained anything in the radio’s being off air for this long.

The law should be employed to protect the public good and not political ambitions of a few in leadership. The are also other laws that impact on the work of journalists in a negative way and could be invoked by the state especially in the coming general elections. These include the Anti-Terrorism Act and the Access to Information Act. Under the Anti- Terrorism Act, there is a lacuna( legal gap) about the definition of who a ‘terrorist’ and ‘publication’ is . This lacuna in the law is a cause of serious concern among the media professionals in the country, largely because many government officials including President Museveni have in the past openly equated journalists to rebels or labeled them government enemies.

But more disturbing is that the law hands out the death penalty to journalists found guilty of publishing or airing information or material deemed to promote terrorism. The death penalty which is still protected by the country’s constitution, leads to self censorship among journalists who may fear to be convicted for alleged publication of material that the state may deem to be promoting terrorism.
On the other hand the Access to Information Act , unnecessarily gives enormous powers to a public servant not to release information in the custody of the state if he/she deems it to be prejudicial to ‘national security’. And there are already cases where this power has been abused. In the case of Charles Mwanguhya and Angelo Izama vs State and now being heard in the constitutional court, government refused to release the oil contracts after the two journalists applied for the information under the provisions the Act. The government officials invoked the powers given to them under the Act to decline the release of information by citing ‘threats to national security’. Some of these laws therefore, need to be revisited and the repugnant sections repealed.
It’s also encouraging that the Uganda Newspaper Editors and Proprietors Association has rightly and promptly objected to the state machination’s to gag the media. In their recent statement the association has called for dialogue between the government and the media to allow the regulations that will not impinge on the fundamental rights of press freedom and the freedoms of free speech and expression.

It’s a fact that journalism is no easy task at the best of times- especially when questions are raised about the workings of journalists and the capacity of the media especially those outside the realm of government- to provide accurate, reliable and timely information on the conduct of those who are in charge of running the government.

The role of the media in a young democracy like Uganda is very crucial in highlighting and exposing the wrongs and excesses of government officials and the widespread corruption in public service.

And while media firms and journalists’ groups like UNEPA should promote higher professional standards among journalists, it’s also the duty of the press as the 4th estate to expose abuse of power by those who are in authority. This the watchdog function, which is a true democratic mandate of the media.

It’s now an accepted international legal norm that a free media is essential for creation of democratic societies. This is a universal and fundamental right.

It is pertinent to point out at this stage that the government maneuvers to gag the media through legal and other means is inconsistent with the rapidly changing media technologies. Its strategy to target formal media ignores the new media which has proved far more widespread than earlier believed.
The advent of digital reporting, text news messages and global phenomena of the dot-com journalism and citizen journalism has changed the speed and reach of news.
The total newspaper daily print run in Uganda is less than 100,000 copies. But there are six million mobile telephone subscribers in the country. Any news that government would wish printed can easily be circulated over the phone to six million Ugandans.

But in Uganda the government continues to treat press freedoms as a matter of strategic public bluster and not a constitutional guarantee. This is because the state officials are averse to public criticism. This is because of the way some state operatives employ unconstitutional means when dealing with journalist or where individual rights are freedoms are abused.

Cases have been recorded where security officials harass, beat and lock- up journalists for a mere spoken or written word. The ideal would be for government to use its vast media outlets to make counter arguments or clarifications, or even follow legal channels to counter the media.
The government has a legion of well paid media and public relations advisers and strategists it can use to counter the alleged falsehoods peddled by the “errant” private publications through public sensitisation and provision of the correct information without resorting to macho maneuvres against journalists.

It is a contradiction in terms for state officials to intimidate the media and at the same time brandish democratic credentials. A vibrant and free media environment is but the hallmark of civil liberties.

There is no denying that the media practitioners have to act responsibly. It’s also true that some elements in the media are guilty of partisanship, corruption, lack of professionalism due to little or no professional training. But these shortcoming should not be the basis for government censorship. Rather the government should encourage more self-regulation and better training of journalists.

There is an elaborate appeal process right up to the Supreme Court and better still the aggrieved public can sue to recover damages and be compensated for the wrongs suffered at the hands of journalists. The state therefore has no justification nor constitutional authority to arrest journalists and have their houses ransacked for purported crimes not recognised under our constitution.
It should be argued that from the above highlighted cases its clear that the increased criminalization of misdemeanours, and increased sanctions against the media have created a situation where security officers exceed their mandate when dealing with perceived media offences.
And some of the provisions of the law governing the media in this country including the proposed amendments are largely aimed at muzzling free speech and expression rather than guaranteeing it with reasonable provisions. In this situation, security officers do not consider it their duty to protect media freedoms but come in only to curtail them.
More anti-media laws mean the State no longer considers media vital in exposing rot in its systems, hence lack of political will to tame vices like corruption and abuse of office or even possible electoral malpractices in forthcoming elections.

We should not allow this practice to take root or to be perceived to be the norm because without a free media and without allow for divergent critical views ,the country’s young and fragile democracy will only be doomed to fail.

A media strategy that encourages intellectual discourse, openness on part of government, dialogue and tolerance for divergent views will go a long way to grow our democracy. Gagging the media is not a good idea and it won’t work.

The media being the last frontier to realising civil liberties should never give in to state patronage let alone harassment.

The writer is the Monitor Weekend Editions Editor and Advocate of the High Court of Uganda.

This article was this month published in the Uganda Media Review journal published by the Uganda Media Development Foundation and funded by Konrad Adenauer Stiftung. All rights reserved. or