Friday, July 26, 2013


TO HAVE OR NOT TO HAVE A SHIELD LAW IN UGANDA MOSES SSERWANGA delves into the tricky question of whether or not Uganda should enact a Shield Law to protect journalists from disclosing sources. It is a complex issue given the loose definition of a journalist, and after effects of the phone hacking scandal in the UK. They have always been easy allies- the journalists and their sources of information. But this privileged relationship is increasingly being challenged by third parties including the state and its agents, raising the pertinent question whether a ‘shield law’ should be introduced to Uganda’s media industry. A shield law can be defined as the law which affords news reporters the privilege to protect their sources. But the privilege must be balanced against a variety of competing government interests such as the right of the government to apprehend criminals and to prevent the impairment of investigations. Still, most states have enacted shield laws, based on the right to access information which guarantee the freedom of the press as provided for in the Bill of Rights In the case of Uganda, this is in Chapter Four of the Uganda constitution. Now, more than ever before, many senior media practitioners interviewed for this paper agreed on the need to accelerate advocacy for parliament to pass a shield law that protects journalists and their sources. With this law in place, industry players argue that journalists will effectively play their traditional and democratic watchdog role without being compelled to reveal their sources of information . David Ouma Balikowa, veteran editor and media consultant makes the case for a shield law to protect journalists and their sources from being prosecuted. “Much as we have a Whistle Blower law that protects people who volunteer information in the public interest, it should be noted that not all whistle blowers are sources of information. Journalists’ sources go beyond whistle blowing. The shield law should be distinct from the Whistle Blowers law; sources of information must be determined and well defined,” he argues. Balikowa posits that journalists should only be compelled to disclose their sources of information by courts of law upon provision of hard evidence that, by doing so, national security interests will be protected. John Kakande, a senior editor at the Vision Group and Margret Sentamu -Masagazi, Executive Director Uganda Media Women’s Association, echo Balikoowa’s views, adding that that there was need for a national dialogue to discuss the enactment of a law to protect journalists and their sources. Their argument is that such a law would ensure public accountability and good governance. The reporters’ privilege not to reveal sources is premised partly on the provisions of Uganda Constitution of 1995, Article 29 which guarantees the public free access to information that is in the hands of government and its agents. The enabling law, The Access to Information Act was operationalised in 2012 after the President assented to it. In other words, free access to information and press freedom -can only be upheld when journalists are protected to access information even from confidential sources in a national effort to provide accurate information for the public to make informed decisions. “This is a constitutional requirement which must be protected,” says, Haruna Kanabi , Executive Secretary of the Independent Media Council of Uganda.( IMCU). There is a provision in Section 38 of the Press and Journalists’ Act that forbids journalists from disclosing their sources except when instructed by a court of competent jurisdiction. This, however, is only a prohibition and does not amount to protection of journalists’ sources. On the other hand, those who are challenging this long held journalists’ professional privilege not to disclose their sources, argue that with the liberalization of broadcasting that led to the proliferation of electronic media outlets, the profession has over the last two decades ,attracted many practitioners with limited or no professional knowledge. This shortage of professionalism has prompted media critics within the public to question whether legal protection should be applied in an omnibus manner, even to abusive and unprofessional journalists. There is also the emergence of the power dynamics between journalists and their sources where the professional high standards of objectivity and independence is being eroded by the powerful , dominant sources of information. As argued by scholars such as Terence Johnson in his book Professions and Power (1972), journalism as a profession loses its autonomy to the forces (read sources) on which journalists depend for information. This argument has been amplified by the recent developments in Britain where reporters attached to the then British tabloid, News of the World, misused the news reporters privilege to protect sources. The paper’s journalists and editors used crude methods including tapping phones of subjects, and at times paid huge amounts to police to obtain information about individuals to use as exclusive story content. These journalists invaded people’s privacy but could not divulge sources of information citing the long held tradition of not revealing sources. It should be noted that the News of the World soon folded following a public outcry that led to a landmark parliamentary inquiry into the scandal. Lord Justice Leveson, who led an inquiry in this public scandal has since released a report in which he states thus: “ There have been too many times when, chasing the story, parts of the press have acted as if its own code, which it wrote, simply did not exist. This has caused real hardship and, on occasion, wreaked havoc with the lives of innocent people whose rights and liberties have been disdained.” Leveson has gone ahead to question the ‘blanket’ privilege of news reporters to protect their sources and recommended for the introduction of a new press law to establish a new regulator with statutory backstop. And yet, the professional misdemeanor, where journalists hide behind the privilege to protect sources, to distort facts , blackmail or worse still extort money from the unsuspecting public for selfish purposes is not limited to the UK. Just recently, The Chief Executive Officer, (CEO) , of The New Vision Group, Mr. Robert Kabushenga, has come clean by publically declaring that indeed, there are journalists who engaged in extortion either as blackmail or in return for guaranteeing favorable publicity. He noted that this has now become an industry-wide problem which threatens to destroy the credibility of media institutions in the country. The question then is : Should we really have a shield law enacted in Uganda to protect news reporters privilege not to disclose sources of information? This question can only be answered after an in-depth analysis of the different arguments presented by the various industry scholars in those jurisdictions where shield laws are applied. The nature and rationale of the Shield Law; But for better understanding of the operation of the shield law we can borrow a leaf from the United States of America where there have been more progress in the application of shield laws. Congress in 1975, passed Federal Rule of Evidence 501 concerning privileges including the qualified reporters’ privilege. The “phantom” privilege referred to earlier dates from Branzburg v. Hayes in 1972. A deeply divided US Supreme Court, while ruling against the reporter, seemed to find a basis for a qualified reporter privilege. In his eloquent and prescient dissent Justice Potter Stewart warned that without a privilege the historic independence of the press would be undermined. Justice Stewart reasoned that without the qualified reporter privilege, (qualified in a sense that there should be reasonable limitations imposed by courts of competent jurisdictions), sources of information for the public good would be apprehensive in reaching out to journalists to share the said information. This, Justice Stuart noted, would fundamentally weaken press freedom and the public’s right to access information. A number of problems have arisen, however, concerning the scope and application of this privilege. One such dilemma is determining to whom the privilege applies. It goes back to a question of definitions of whether journalists are professionals to enjoy the trappings of a professional. Unlike other professionals, privileged by scholarship, societal standing and licencing like lawyers and doctors, in Uganda many journalists are not licensed or certified in any manner. Any law that provides a privilege necessarily must define whom it will cover. This is a well-placed caution with strong historical perspectives on the dangers of government defining who is a journalist. Licensing and mandatory membership in press groups have been frequent and convenient ways for government to restrict press freedom. The Press and Journalists Act (2000) does not have a definitive definition of who a journalist is. In other jurisdictions a journalist has been defined as one who communicates via newspaper, is employed by a newspaper, or whose communication is classified as “news.” The other issue which arises is whether books, magazine articles, or pamphlets are encompassed in the definition of a newspaper. Most state statutes also protect television and radio broadcasts, although some limit protection to “news” programs. In addition, some courts have held that documentary films should be included in the scope of the privilege protection. There is also the question of how the term news should be defined. Statutes seldom define the term, and some commentators are not convinced that an adequate definition can be devised. Presumably poetry or works of fiction are not news, but it is a more difficult question when considering sensationalism or gossip. Some legal scholars advocate avoiding consideration of the supposed worth of the communication and making the privilege available to those who generally acquire information for public dissemination. According to John Baptist Wasswa, journalism lecturer at Makerere University, the definition of who is a journalist should encompass professionals who are in the business of publishing information . “And I think this goes beyond journalists. That’s an area which must be agreed upon by the industry players and other stakeholders when developing the shield law. We need to determine the categories of these professionals i.e film producers, playwrights , Djs, etc .Should all these professions involved in providing information be protected?,” he says. Another important issue that arises under state statutes that protect journalist’s sources is whether a “source” can only be a human informant or whether it can include a book, document, tape recording, or photograph. Both Kakande and Sentamu Masagazi argue that sources who should be protected are those who divulge information in the custody of state actors. Again this should be read together with the provisions of the Access to Information Act. Others who should be protected are those sources in vulnerable positions where upon disclosure could lead to their lose of employment. Wasswa makes the point, however, that a proposed shield law should not apply to the editor-reporter relationship. For good journalism to flourish and in order to give the editor a certain level of confidence in a journalist’s story, journalists should disclose their sources to their editors. The onus then lies on the editors not to disclose the journalist’s sources to third parties. The Uganda situation makes the need for more protection for sources even more urgent. Security issues are taking centre stage, and we are witnessing increased government secrecy on matters that should be in the public arena, such as petroleum production agreements. Tony Pederson ,a distinguished media scholar and a Belo Chair in Journalism at Southern Methodist University, states that while shield laws are not necessarily the complete answer to challenges on reporter privilege, this much is certain: “The loss of an aggressive and independent press puts all individual liberties at risk. Even the media bashers and the hard-liners on prosecutorial rights will have to listen at some point. Constitutional government has often been a balancing act, and a reasonable balance is what is needed.” The recent police siege at the Daily Monitor and Red Pepper has compounded the shield law debate. Did the controversial missive by Gen. Sejjusa qualify as a documentary source befitting protection? Is it still a revered source when the author confirms he penned it? Was police looking for the right source? This indeed brings forth a new dimension. As we carry forward this discussion it’s imperative for Uganda’s media fraternity to do a soul searching and determine whether it has employed the ‘sacred’ privilege to protect sources in service of the public good or, for selfish . Otherwise, it won’t be long when third parties will have a just cause to render this benefit redundant. The writer is a an advocate of the High Court of Uganda This paper was first published in the Uganda Media Review Journal

1 comment:

Moses Akena said...

Nice read and insightful article Moses. There is a great need for this Law in Uganda especially in the era of increased militirisation of police and heavy-handed approach to critical reporting