Is the push to accredit journalists legally tenable?

OPINION 

The Uganda Media Council, the regulator of journalists and the print media in the country, has finally made it back to the headlines like its richer cousin, the Uganda Communications Commission.

Not to be outdone, UCC has taken to writing to the tech behemoth Google over the alleged use of its platforms such as YouTube to incite violence and ethnic discord.

What has put the usually restrained Media Council on the spot is its recent directive to all practising journalists in Uganda to register for accreditation or lose the right to cover the 2021 elections and other official events.

The regulator gave the journalists up to December 21, 2020, less than two weeks, to comply with its arbitrary decision. 

The Media Council also directed all foreign journalists intending to cover the January 14, elections to get new accreditation cards and obtain a special media pass.

They are required to indicate "particular geographical or thematic areas of intended media coverage".

Several media rights and support groups, including the African Centre for Media Excellence (ACME), which I lead, have protested these directives.

Ugandan media owners have been generally quiet. Most of them had quietly acquiesced long before the Media Council went public.

The gist of the pushback against the regulator has been on the timing, which makes the directive look suspiciously like a move intended to stifle the rights of journalists and freedom of expression in the run-up to the elections.

The lack of adequate consultations and the short deadline, as well as the apparent attempt to exclude bloggers, citizen journalists and political party publicists, have also been an issue.

So has the legitimacy, legality and constitutionality of the move to register local journalists.

It is this last issue that I would like to address. ACME and most of the groups that have protested the regulator's directive recognise the mandate of the Media Council to regulate professional conduct and journalism practice in Uganda. 

And we have engaged the council on issues of standards. But I am not sure that the current registration drive is legally tenable.

The Press and Journalist Act, which established the Media Council, also created the National Institute of Journalists of Uganda (NIJU), of which I was the first elected president in 1997.

NIJU was mandated to, among other things, "establish and maintain professional standards for journalists; foster the spirit of professional fellowship among journalists and encourage, train, equip and enable journalists to play their part in society".

We had a lot of goodwill from the industry in those early years, partly because the leaders of the leading media houses, The New Vision and the Monitor, threw their weight behind the institutions and mechanisms that had been created by a law they had negotiated as a compromise at a time when some extremists were pushing for more draconian provisions against the press.

Due to a cocktail of reasons, NIJU did not last beyond the terms of the first three elected presidents. 

And with the death of NIJU followed the end of the issuance of practising licences by the Media Council. That was more than 17 years ago.

According to the Press and Journalist Act, all journalists are required to have university degrees in journalism or mass communication, or other university degrees and a qualification in journalism or mass communication.

Only those qualified to be full members of NIJU and upon application, they are supposed to be issued with a certificate of enrolment.

Section 26 of the law provides that those enrolled under the Act shall, "on presentation of the certificate of enrolment to the council, be entered on the register of journalists of Uganda".

Then the council, upon receiving the prescribed fees, issues "a practising certificate to a person who is enrolled under this Act".

The practising certificate is supposed to be valid for one year and is renewable upon payment of the prescribed fee.

The law adds that "No person shall practise journalism unless he or she is in possession of a valid practising certificate issued under this section".

It also creates an offence for practising without a certificate issued by the council.

The Act provides that "a person is deemed to practise journalism, if he or she is paid for the gathering, processing, publication or dissemination of information; and such person includes a freelance journalist".

Of course, there were many colleagues who at the time NIJU was created rejected the idea of conscripting journalists into a statutory creature.

According to them, this violated the constitutional right to free expression, which was not limited only to professional journalists.  

While I remain a big advocate of professionalism in journalism, over the years I have found a lot of merit in the argument that licensing journalists in fact violates constitutional guarantees of freedom of expression.

This right — which is also provided for in the Universal Declaration of Human Rights (Article 19), the International Covenant on Civil and Political Rights (Article 19), and the African Charter on Human and People's Rights (Article 9) — is for all citizens to receive and impart ideas and opinions without undue hindrance. 

The "advisory opinion" of the InterAmerican Court of Human Rights on "compulsory membership in an association prescribed by law for the practice of journalism" is one of the best authorities on this issue.

The United Nations Human Rights Committee has also weighed in under General Comment 34 of 2011 saying: "Journalism is a function shared by a wide range of actors, including professional full-time reporters and analysts, as well as bloggers and others who engage in forms of self-publication in print, on the Internet or elsewhere, and general state systems of registration or licensing of journalists are incompatible with paragraph 3 (of the International Covenant on Civil and Political Rights).

Limited accreditation schemes are permissible only where necessary to provide journalists with privileged access to certain places and/ or events."

But even if we were to argue that Uganda's Press and Journalist Act is constitutional and consistent with the international obligations the country has undertaken, one would have to question the legality of the Media Council's recent directive on registration.

Under what framework are they proceeding? Prof. Frederick Jjuuko of the School of Law at Makerere University argues in his book The Fourth Estate: Media Freedoms and Rights in Uganda (2015) that because NIJU is no longer in existence, "there are no enrolled journalists in Uganda.

It also means that there are no properly registered journalists with the Media Council.

It follows also that there are no journalists in Uganda licensed by the Media Council as the law requires because all these presuppose the existence of the NIJU and the enrolment of journalists into the institute".

He also raises an important question about the composition of the regulator, saying "the Media Council cannot be properly constituted since two members must be representatives of the NIJU and another has to be nominated by journalists".

Besides, more than half of the positions on the Media Council are vacant.

According to the law, the council shall consist of 13 individuals including the director of information or senior officer from the ministry responsible for information; two distinguished scholars in mass communication (appointed by the minister in consultation with NIJU); a representative of the Uganda Newspaper Editors and Proprietors Association; two representatives of electronic media and two representatives of NIJU; four representatives of the public (two nominated by the minister, one by UNEPA and one by journalists); and a distinguished practising lawyer nominated by the Uganda Law Society.

As it is constituted today, the Media Council has only six members, yet the law prescribes a quorum of seven members for its meetings.

The six include chairman Paul Ekochu and Michael Kawooya Mwebe of CBS (representing the electronic media); secretary Kyetume Kasanga representing the ICT ministry; presidential press secretary Lindah Nabusayi and journalist turned lawyer Peter Okello Jabweli (who used to represent NIJU) and Assumpta Kemigisha Sebunnya (representing the Uganda Law Society).

Does this Media Council have the legality and legitimacy to proceed with the registration of journalists in the circumstances? I don't think so.

That is one of the reasons why ACME and others have worked with the Media Council to establish a self-regulatory mechanism that can participate in the arbitration of such disputes, promote standards, but also lead the conversation on reforming the law to establish more transparent and accountable regulation.

That effort is still a work in progress. If the Media Council must proceed with accreditation, let it be clear that it is for exclusive events such as access to the Electoral Commission's centre for announcement of election results (i.e. national tally centre) or other such official events.

But using the council's cards to deny bona fide journalists, bloggers, citizen journalists and party publicists access to campaign rallies and related events as well as polling stations on election day would be a blatant violation of the right to freedom of expression.

The writer is co-founder of the African Centre for Media Excellence (ACME).

He's a former executive editor of Monitor Publications and head of the department of journalism & communication at Makerere University.