By Vincent Babalanda

THE Cabinet is discussing the Press and Journalist Amendment Bill 2010 which proposes to empower the Media Council to control the licensing of newspapers and close ‘errant’ media houses.

The Bill also calls for the strengthening of the disciplinary committee of the Media Council whose board will be appointed by the minister for information. This is a worrying trend as it will be difficult to start a newspaper and media houses that are deemed to be ‘hostile’ to the Government.

According to the 2006 annual press freedom index of Reporters Without Borders, Uganda is ranked 116 out of 168 representing a drop from 2005 when Uganda was ranked 80th. Similarly, Freedom House, in its 2007 annual report ranked Uganda 116th out of 169 countries, a drop from 111th in 2006. In its 2008 report, Uganda’s global press freedom ranking is 114 out of 195 countries that were rated by Freedom House.

While discussing the Bill, the Cabinet should be mindful that Uganda as a state party to the African Charter on Human and Peoples Rights is under an obligation to make every effort to give practical effect to the 2002 Declaration of Principles on Freedom of Expression in Africa that reaffirms the fundamental importance of freedom of expression as an individual human right, as a cornerstone of democracy and as a means of ensuring respect for all human rights and freedoms. Thereore, the Cabinet should explore the practice of media self-regulation and make recommendations for a progressive law that provides for a self-regulating independent Media Council.

At present, approximately 50 of the world’s nation states have established independent self –regulatory media councils. This figure includes 17 member states of the European Union and another nine member-states of the Commonwealth. A number of other countries are in the process of establishing self-regulatory media councils.

Self-regulatory systems take many forms throughout the world. Whatever these constitutional and procedural differences may be, all media councils serve the same two main purposes. They protect media freedoms and protect citizens from abuses of those freedoms by the media, while giving due regard to those matters which affect the public interest.

In seeking to reconcile aggrieved parties, regulatory bodies must give due consideration to the claims of the public interest but the nature of these claims vary according to who is advancing them. Editors, for example, may advance a public interest defence in order to justify an invasion of privacy. The Government may advance the same defence in order to restrict freedom of expression or access to information. Editors, for their part associate the public interest with the extension of these rights.

The resolution of these conflicts of interest and interpretation, as and when they arise, is the central concern of all adjudicatory purposes—whether they are being carried out by statutory or self-regulatory bodies. The fact that such conflicts of principle occur so frequently explains why some form of media regulation is necessary. The dilemma we face is not one of choosing between regulation or no regulation at all but of choosing between two different kinds of regulation – statutory or self-regulation.

With regard to the media, two powerful arguments can be advanced in defence of self-regulation. First, a free media is one of the fundamental institutional characteristics of a free society. Newspapers and radios are public watchdogs. They scrutinise those who exercise powers in every walk of life. They help voters make informed choices and reach considered opinions. They frequently criticise Government policies and the conduct of political office-holders. For all these reasons, as Lord McGregor once observed, relations between politicians and the press tend to be “uneasy, suspicious and fretful”. If they were ever to become more cordial there would be good grounds for questioning whether or not the press was doing its job effectively as a public watchdog.

Even in democracies, media freedom is never absolute. It is subject to many legal restraints which in the UK, for example, include laws of defamation, data protection, copyright more recently and the 1997 Human Rights Act. If, however, the state were to become continuously involved in regulating the day-to-day conduct of news gathering and publication in ways that went beyond these legal restraints, such regulation would eventually become synonymous with statutory censorship of the printed word.

Relations between Government and the media would become openly confrontational or abjectly conciliatory. And since it would be impossible to regulate the internet effectively the whole exercise would swiftly be rendered pointless.

Secondly, the case for self-regulation rests on the premise that, in complex democratic societies, self-imposed rules are likely to carry a greater moral authority and, consequently work with greater effectiveness than externally imposed legal ones.

Self-regulation, at its best, works well because it is accessible to everyone, rich and poor alike. It is fast and flexible in its conduct of business. With the appropriate institutional safeguards it operates independent of all special interests and at no cost to either the taxpayer or the complainant.

Media regulation is essentially a practical day-to-day activity. It is concerned with making adjudications on complaints from angry citizens about unethical media conduct. The regulators’ job is to decide whether or not the actions of the accused newspaper or periodical have breached the Code of Practice that their industry has agreed to uphold and obey.

The manner in which complaints are dealt with is largely determined by the terms on which, and the circumstances under which, the self-regulatory council was originally established and the content and remit of the code was agreed. These originating circumstances, of course, vary from country to country across the self-regulatory spectrum. They are not, however, the only determinants of the regulatory process.

Once established, the conduct of self-regulatory media councils and the content of their Codes of Practice evolve over time in response to changes in the law, editorial policies, public opinion, technological innovation and the hard lessons of experience.

Consequently, there is no universally applicable blueprint for self-regulation that countries can adopt ready-made for their own particular needs. Learning about the practice of self-regulation starts from the moment the main stakeholders begin drafting their own Codes of Practice.

The reason why there is no universal blueprint is because self-regulation depends on the voluntary compliance of all the parties involved in its activities. A self-regulatory media council can, therefore, only work effectively if its code of ethical conduct is based on the civic traditions and customary values of the industry which it oversees and the general public which it serves and protects.

Self-regulatory codes of conduct must be informed by the realities of everyday professional practice and the expectations of the people they serve. These practices and expectations are, in turn, underpinned by their attachment to more general principles of ethical conduct and formal doctrines of natural rights and obligations.

In 1972 the then US President Richard Nixon stated: “When information which properly belongs to the public is systematically withheld by those in power, the people soon become ignorant of their own affairs, distrustful of those who manage them, and eventually incapable of determining their destinies”.

Uganda is a growing democracy and a free media responsible for its own regulation is one of the hallmarks of a free society.
The witer is a Ugandan lawyer based in Nairobi