On the Draft Constitution, the glass is half full, half empty for media

Issues in summary:

• On media and freedom of expression rights, the zero draft records many firsts in the constitutional building process in the country
• A number of limitations, however, are not justifiable in a democratic state and stifles an expressive citizenry
• The state-owned media is not desirably insulated from the political, financial and operational controls of the government in power
• Provides for a good-intentioned statutory regulatory body that invites undue state interference in the business of journalism

The draft of the 2019 Constitution is out and there is bad news.

The 1997 Constitution which is being replaced recognises and eloquently articulates the role of the press in the governance architecture. Curiously, the zero draft published for public scrutiny and consultations fails to grant any guarantee or recognition, implied or expressed, to the role of the press as the oxygen of the democracy promised.

Freedom of expression and the rights derived from it – of press, of speech and of information – never enjoyed high standards of constitutional safeguards in The Gambia. The much hyped and much-anticipated zero draft, unfortunately, is not an exception. Not yet. It falls considerably short of the generosity of a democratic 21st Century, in articulating and safeguarding the preferred place of the media in the constitutional arrangement, media freedoms and broad issues of freedom of expression. The omissions are worryingly significant. That is besides concerns over disturbing provisions covering a number of areas, including state-owned media, media regulation, freedom of information and the claw-back clauses.

There is much more good news, though. The zero draft records many positive firsts in the history of constitutional building in the country. For instance, protection is specifically provided for other forms of protected expressions, such as academic freedom, artistic freedom and freedom of scientific research. Freedom of the media and freedom of information, previously seen as a redundant branch of the right to freedom of expression trunk, each now stands and is prominently protected as a distinct fundamental human right. The right to gather and report news is guaranteed. So are freedom of reporting and freedom from pre-publication censorship. This is in addition to the much welcome protection of I-rather-be-jailed principle of confidentiality in journalism. And, this one should be said in a whisper: there is a provision that provides protection for whistleblowing as the draft constitution places a welcome patriotic duty upon every citizen to expose wrong-doing, particularly abuse or wastage of state funds. Hurray!

In many ways, the draft constitution is a revolution. Freedom of expression and the rights derived from it are contained under Chapter 6, which provides for fundamental rights and freedoms. The chapter is divided into two parts and it is entrenched. The first part deals with General Provisions on Fundamental Human Rights and Freedoms. This section recognises and guarantees the inviolability of human rights and provides vital guidance on the implementation, interpretation and enforcement of the human rights guarantees provided in the constitution. The second part spells out the specific rights and freedoms in greater detail.

This piece is a four-part series that provides analysis of guarantees for media freedoms, freedom of information and freedom of expression. The first part deals with freedom of expression and freedom of information under section 44 and 46. The Part Two covers media freedoms under section 45. Part Three deals with media regulation and the final part deals with limitation clauses provided for the rights guaranteed.

Freedom of expression

Freedom of expression has long been recognised as a fundamental human right in The Gambia. The Republican Constitution of 1970 broadly guarantees the right to freedom of expression. Section 22 provides for the protection of the right to hold opinions, to receive and to communicate information and ideas without any interference. It further protects privacy of correspondence in the exercise of the right to free expression.

The framers of the 1970 Constitution made a bold attempt to generously guarantee freedom of expression rights in a rather wordy construction. It was inadequate. Freedom of information and media freedoms are not distinctly protected as a human right.

The 1997 Constitution is considerably less articulate in the protection of broad issue of freedom of expression, even though press freedom is explicitly recognised as a fundamental human right. Section 25 doesn’t cover – expressed or implied – the right of access to information. In fact, unlike many constitutions of its time, where the freedom of expression provisions are generally adapted from Article 19 of the International Covenant on Civil and Political Rights (ICCPR), the 1997 Constitution does not even have such commonplace framing as the right to ‘seek, receive and impart information and ideas’.

Section 44 of the Draft Constitution guarantees the right to freedom of expression. In a precise and simple fashion, it says that everyone shall have the right to ‘seek, receive and impart information and ideas’. The right is not exclusive to citizens. As indicated earlier, artistic freedom, academic freedom and freedom of scientific research have all been protected. This is entirely new in The Gambia.

However, there is a notable absence of terms such as the right to seek, receive and impart information and ideas ‘of all kinds’, ‘across all frontiers’, ‘whether in public or private’. These are commonplace in the framing of freedom of expression provisions, but of course it can be a matter of context and whether adding those terms will add any value to the current draft.

On freedom of information,

Section 46 guarantees the right of the public to access information held by public bodies and relevant private entities. This framing is largely inspired by existing international and regional instruments, in particular the African Union Model Law on Access to Information. One cannot but be pleased with the thoughtfulness of the framers by the inclusion of section 46(1)(c), which requires information held by another person to be disclosed if doing so is required for the exercise or protection of fundamental human right.

Sadly though, the right is made available only to citizens. This might be the case in a dwindling number of countries, but it is neither a best practice nor a standard under international law. The formulation should borrow leave from the Access to Information Bill, 2019. , which was tabled before the National Assembly on Tuesday December 03, 2019.

Furthermore, subsection 5 of section 46 provides for an Act of the National Assembly to “make further provision to withhold information where the harm to the interest protected under a relevant provision demonstrably outweighs the public interest in the disclosure of the information.”

This is a surprise and it is unnecessary. The primary obligation of the state under international law is to establish an Act of Parliament and mechanisms to give effect to the right. Furthermore, the Draft Access to Information Bill adequately caters for kinds of information that are exempted from disclosure.

Additionally, on freedom of information, it will make much more sense for the constitution to make it clear that where disclosure are involved, as indicated in various parts of the constitution, such as on asset disclosure and posting on the gazette, it should be done in a manner that facilitates public access.

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Part 2

Media freedoms 

The issues in summary:

• The role of the press in society is not recognised
• Press freedom is recognised as a fundamental human right
• The press is accorded a number of fundamental freedoms

Press freedom goes beyond the right of the journalist to gather and publish news or information. The right extends to the right of the public to express views through mass media and to receive information published or broadcast by mass media.

In certain situations, framers of constitutions have declined to give any privilege or special status to the press in the constitutional arrangement. The argument is that a journalist is an ordinary citizen and the rights and freedoms accorded to all and sundry in terms of freedom of expression cover journalists. The Gambia has leaned towards the other side of the fence. The 1997 Constitution clearly gives the press a preferred status and it is more generous than the 1970 Constitution. Section 25 gives press freedom more prominence than we ever have while Section 207 establishes a minimum recognition of the role of the press as Fourth Estate in the governance architecture.

The formulation of Section 25 is a landmark in the development of media law and policy in the country. It states that ‘everyone shall have the right to freedom of speech and expression, which shall include, freedom of the press and other information media’. This provision is part of Chapter 4, which deals with fundamental human rights and it is entrenched.

Besides, it is the first time in post-independence Gambia that a constitutional provision specifically recognises press freedom as a distinct right. By protecting the rights and freedoms of ‘other information media’, the provisions not only cover journalists. Other types of printed and broadcast materials such as books and films are substantially, if not adequately, covered.

A further reading into the 1997 Constitution reveals a more profound articulation of the degree of the constitutional protection for the freedom and responsibility of the press. Section 207, in particular, provides a strong protection to ‘the freedom and independence of the press and other information media’. It also arrogated to the press the duty to serve as watchdogs, guaranteeing that the press ‘shall at all times be free to uphold the principles and objectives of [the] constitution and the responsibility and accountability of government to the people of The Gambia.” And, Section 208, which is deal with in a subsequent section, obligates all state-owned media to provide divergent views and dissenting opinions.

Media rights under draft constitution

Section 45 of the Draft Constitution, 2019, provides for freedom of the media. It contains four sub-sections, dealing with general provisions, protection from any criminal sanctions for expression of opinions, state-owned media and regulation. Section 45(2), which elaborates the rights and freedoms of the press, guarantees the right to own and operate media and to gather and disseminate news and information. It also protects the media from pre-publication censorship and from disclosure of source of confidential information. None of these rights are guaranteed in the 1997 Constitution. And section 45(2) is a bold and daring move: an absolute protection from any attacks from the state for opinions expressed in any media publication.

In essence, the 1970 Constitution broadly recognises the right to freedom of expression but does not guarantee its corollary rights, of press and of information as a distinct human right.

The 1997 Constitution, meanwhile, expanded the right to freedom of expression by recognising press freedom as a distinct human right and giving the press a privileged status, but doesn’t guarantee any protection for journalistic activities and privileges.

The Draft Constitution, in addition to recognising press freedom as a human right, goes as far as providing guarantees for the main journalistic activity of providing news service and the privileges that come with that, but it does not recognise the role of the press in society.

The case being made, therefore, is for the new constitution to provide guarantees for the role and functions of the press or confirm the place of the press in the governance architecture as the basis for providing protection for carrying out journalistic functions, which includes but not limited to provision of news service.

On state-owned media 

Simply put, state media refers to a media outlet controlled by the state. This could particularly be seen in the form of appointments to the key decision-making bodies. It is also in its finances and operations, particularly in editorial decision making. State media is often confused with public service media. The two are different. State media may perform public service functions but that does not make it a public service media. In essence, public service media have everything that a state media lacks – inclusive representation, diverse programming, editorial and financial independence.

The Gambia has never had a public service media. We have a longstanding, strong tradition of state-controlled media since independence. The 1997 Constitution provides for the establishment of state-controlled media and obliges it to serve our diverse peoples in a ‘fair’ manner. In practice, the story is different. The president appoints and his appointees serve at his pleasure. Once upon a time, even the cameras are the personal property of the president. In this day, the president does not lay claim to the cameras. Yet the opposition are denied coverage because the cameras are not enough to cater for others, including the president and the opposition.

Let’s get it. There are two known state-owned media in operations. The Gambia Today, a weekly newspaper published only in print and with little circulation has over the years changed its form, size and name severally in the past few years. The Gambia Radio and Television Services (GTRS) is the broadcasting outfit. There is no registration or licencing requirements for state-owned media outlets under the existing relevant laws – Newspaper Registration Act and the Information and Communication Act. The Gambia Today is published by the Department of Information Services, under the Ministry of Information and Communication Infrastructure (MoICI). The content is provided and edited by government information officers, who are civil servants, though with some freelance contributions. The GTRS is established by an Act of Parliament and the television station shares premises with the Ministry of Information and Communication Infrastructure. This is where transforming it into a public service media should begin.

Clearly, the independence of the state-owned media is not guaranteed. It remains the practice, backed by law, that the president of the republic makes appointment to key positions at the Gambia Radio and Television Services (GRTS). This is done without any public or legislative oversight. It is also clear from experience that the state interferes with the finances of the station, even though the station is financed by GSM levy. It is also clear the operations of the state media were clearly interfered with. There were many instances in the past, where anchors were yanked off the screen and current affairs programmes stopped mid-air simply because the president did not either like to see the face of the anchor or does not like the content of the programme. Really!

Now, let’s see what is being proposed! Section 45(4) of the zero draft provides for state-owned media. This provision is not remarkably different from section 208 of the 1997 Constitution, which guarantees ‘the freedom and independence of the state-owned media’ in a similar fashion. The inadequacy of the protections accorded to the state-owned media in the zero draft is quite troubling. There are legitimate calls for the new constitution to require all state-owned media be turned into public service media. The call is in line with the Declaration of Principles on Freedom of Expression in Africa, which obligates states to transform state-owned broadcasters into public service broadcasters through the legislation rather than the government. This is not just an ideal, it is a particularly important aspect of the media and broader democratic reforms that needed strong backing from the constitutional building process.

Admittedly, the zero draft guarantees the independence and impartiality of state-owned media, but crucially, the appointment processes at governing body and senior-level positions do not support the independence and impartiality of the institutions. Part 5 of Chapter 15 appears to provide an important safeguard. More specifically, section 278 states that the chief executive officer of state-owned enterprises – of which belongs state-owned broadcaster, the Gambia Radio and Television Services – will be appointed by the president, subject to confirmation by the National Assembly. This is positive, but in the context of state-owned media, particularly a publicly funded broadcasting outfit, this safeguard falls short of meeting international standards. Section 277(1) gives excessive discretion to the president to appoint board members of state-owned enterprises, of course, as a usual constitutional nicety, in consultation with the Public Service Commission. The international standards require broad-based participation, including involvement of civil society, in the appointment processes of the governing bodies of publicly funded media outlets, including civil society participation. The constitutional building process should therefore take cognisant of and appreciate the peculiar nature of publicly funded media outlets providing service function and not cover it in the cloak as other state-owned enterprises in terms of providing safeguards from state interference.

The Gambia is faced with a challenging but hopeful reality that the constitutional building process must not ignore. Having a public service media, rather than state-controlled media, has enormous advantages for a developing democracy like ours. States are controlled by governments who are by nature and design, partisan in a way that the muscles of the cleavages that constitute the government are manifest even when masked. A public service media that looks out for everyone, more than profit-oriented private media or state-owned media, is better placed in promoting democracy and social cohesion. Our democratic reforms and transitional justice processes require us to have a publicly funded media that is insulated from the political, financial and operational controls of the government in power. Besides, there is a legitimate expectation from the public and industry for the publicly funded media to be the standard bearer for quality of journalism in the country.

END OF PART TWO

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Part 3

On media regulation 

• The zero draft establishes a statutory regulatory body for journalist
• The formulation of the provision is worse than that of the 1997 Constitution, which was repealed after widespread condemnation
• Statutory regulation of journalism is an uneasy everywhere, particularly in Gambia, where it brings back memories of the killing of Deyda Hydara
• The zero draft fails to provide a legal underpinning to the existing media self-regulatory body called Media Council of The Gambia

Regulation of the media is essential in upholding the principles of the freedom and independence of the media while safeguarding freedom of expression. The debate however continues as regards the best system of regulation for the media – state-sanctioned or self-regulation, or a combination of the two systems.

There are fears – justifiably and evidently so – that government interference in determining how journalism should be conducted leads to media restrictions. There are many instances where governments hide behind regulation to suppress dissent. The other side of the argument is that self-regulatory systems often lack policing powers as it relies on the goodwill of media personnel who, by the nature of their calling, are headstrong. What is clear, though, is that international standards generally favour self-regulation for the media as the best way to monitor compliance and sanction non-compliance of professional and ethical standards in journalism. Self-regulation is found to be cheaper, shorter and more efficient way of dealing with complaints, besides the fact that it preserves media freedom, particularly in new democracies and allows journalists to internalise ethical standards. More impressively, in an era of media convergence, self-regulation is found to be the most efficient way to regulate editorial content across mainstream media platforms – print, broadcast and online.

Self-regulation isn’t a perfect system. In fact, it has in many instances been proven to be very ineffective. But democracies around the world have, time and again, chosen to err on the side of caution by accepting to err on the side of democracy, rather than putting in place good-intentioned regulatory frameworks that could be abused to pave way for undue restrictions.

Granted, even where self-regulation exists, it cannot take the place of statutory or state-sanctioned regulation, which is favoured in terms of licencing, copyrights and programmatic issues only to the extent of meeting public service functions for utilizing public resources and issues of public health and morals. The argument in favour of this kind of regulation, particularly for broadcast media, mainly is that the spectrum which is used for broadcasting is a limited public resource and should be fairly managed. Questions are now being asked whether this position will be tenable for a very long time, given that online platforms, which can and are now being used for broadcasting, are not ‘limited public resource’. Of course, copyright and the Radio Mille Collines affair will continue to haunt us when developing policies around broadcasting.

Regulation of the media in The Gambia is an uneasy subject. The 1997 Constitution had obligated The Gambia to establish a statutory regulatory body: National Media Commission. In 2002, the government passed an Act establishing the Commission. The intentions of the government were very clearly reflected in what was seen as excessive powers given to the Commission. Among others, the Commission was given powers to annually register journalists and to force journalists to reveal sources of confidential information. The decisions of the Commission are final and could not be challenged even in a court of law. It therefore was not a surprise that the establishment of the Commission triggered widespread local and international outcry. The journalists resisted and the then president Yahya Jammeh responded that they ‘must comply or do not print or go to hell’. The GPU challenged the constitutionality of the Commission at the Supreme Court of the Gambia. In the end, the National Assembly, in response to growing concerns, repealed the National Media Commission Act as well as the constitutional provision that obligated the setting up of the Commission. The fight was won at a heavy price. Deyda Hydara, a prominent journalist in the forefront of the campaign against the Commission, was shot and killed.

Currently, there are two different pieces of legislations covering licensing and registration of news and information media outlets. There is the Newspaper Registration Act of 1934 and amended in 2004. This requires media outlets to provide a bond of half a million dalasis for registration purposes. Additionally, the Information and Communication Act provides for regulation of the broadcast media by a multi-sector regulator, Public Utilities Regulatory Authority (PURA). Several studies and reviews of media laws, including the one recently commissioned by the government, have found the broadcast licensing and newspaper registration regime in the Gambia, to be inconsistent with acceptable international standards for the regulation of the media for two reasons:

• international law frowns upon special registration requirements for newspapers. Registration under Companies Act suffices. Moreover, a fee of half a million dalasis bond is no doubt restrictive in a poor country where more than 60 per cent of the population lives below the poverty line. Freedom of expression and press freedom are thus very expensive commodity.
• the process of registration and licencing is not independent. The Attorney General’s Office and Ministry of Justice is responsible for registration under the Newspaper Registration Act while the Minister for Information and Communication Infrastructure approves licenses for television and radio broadcasting under the Information and Communication Act, 2009. The ministers are political appointees and the process is done without any acceptable public oversight. This is besides the fact in the case of broadcast regulation, the regulator is not properly constituted. The board has no civil society or media representative and all of them were appointed by the head of state.

The standards and procedures for media regulation in The Gambia are demonstrably at variance with international standards. The current constitutional building process is poised not to make any difference.

 Regulation under the draft constitution

Section 45(6) of the zero draft makes provision for the establishment of an independent media regulator. This is by far the most dangerous provision in the entire draft constitution. The regular is tasked with regulating broadcast and communication services, ensuring fairness and diversity and, problematically, setting media standards. The formulation of this provisions places regulation of editorial content in the hands of a body constituted entirely by the state without any guarantee or adequate constitutional safeguards for its independence. The interpretation of section 277 and 278, as regards state-owned media, applies here in the sense that the safeguards are insufficient enough to prevent the state from unduly interfering in the affairs of the body. In fact, the formulation of section 45 is worse than what was the National Media Commission clause in the 1997 Constitution, which was eventually repealed by parliament after widespread criticism and opposition. Unlike the draft constitution, the 1997 constitution made a provision for civil society participation in the constituting the establishment media commission and had made it a requirement for The Gambia Press Union to appoint a representative on the Commission. Yet, the zero draft does not even name the regulator among independent commissions such as National Human Rights Commission, which are insulated from state interference.

So, in essence, there already is in place a state-sanctioned regulatory body in PURA, a multi-sector regulator. Plans however are advanced to put in place an independent media regulator in the shape of what is being proposed in the draft constitution. This has temporally been abandoned to allow for more consultation after taking into account concerns raised over its suitability.

With regards to self-regulation, there is a widely circulated industry-wide code of conduct for media professionals. This is currently being reviewed so as to meet the diverse needs of the ever-changing, rapidly growing industry. What was lacking was a body to be responsible for monitoring and enforcement of professional and ethical standards. That body has now been put in place and it about to start receiving complaints. The constitutional building process certainly is aware of these developments and could have and should have given the self-regulatory body the much needed legal underpinning with adequate safeguards.

END OF PART THREE

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Part 4

Limitations 

The issues in summary:

• The claw-back clauses are more overly broad and more draconian than the 1997 Constitution
• Insults and national betrayal comments could be punished

The limitations provided for the freedom of expression rights guaranteed in the zero draft, ironically, are more overly broad, more draconian and more intrusive than those provided for in the 1997 Constitution. The only unwanted elements in the limitations clauses in the 1997 Constitution are the words ‘sovereignty’ and ‘integrity’ of the state.

It is standard, right? The right to freedom of expression is not absolute. The exercise carries with special duties and responsibilities. But the limitations provided under international law are not open-ended. They are to be narrowly defined to avoid fishing expeditions, interpretative abuse and disproportionate application.

The UN Human Rights Committee famously decided that any restriction to the right to freedom of expression must pass a strictly applied three-part test. That is, the limitation must be clearly defined by law, necessary in a democracy and pursue a legitimate aim. All three must be satisfied.

It is clear, even from a layman analysis, that a number of the claw-back clauses are vague. And vague provisions, according to courts and international human rights mechanisms, have a chilling effect on freedom of expression. The overly broad and ambiguous terms used variously such as ‘sovereignty and integrity’ of the state, ‘uttering abusive and threatening words’, vilification of others, incitement to break law and order, and writing that causes feelings of ill-will, disaffection or hostility, are (1) not defined anywhere in the constitution (2) outside of the parameters within which limitations should be framed (3) validates the widely criticised insults laws that the government promised to repeal (4) subject to abuse by a government that is half tolerant and panicky 5) stifles democratic participation of an expressive citizenry; and (6) are perfect definition of sedition.

The framers perhaps wish to bank on the argument that the courts – referred to as the last bastion of hope in the zero draft’ – will be available for interpretation. This is visible throughout the constitution, more so, section 31 and section 311, which the courts are commendably and consistently encouraged to give favourable consideration to the exercise of fundamental human rights as desirable in a democracy.

Rightly so, but this is not without serious implications. The more popular and justified position among proponents and experts is that matters of freedom of expression should largely be battled out in the metaphoric marketplace of ideas. Where law enforcement are encouraged to interfere without any adequate safeguards, there are high risks of fishing expedition. That is besides the fact that the fact court processes and the arrest and detention that precede appearance are costly in terms of finance, time and emotional trauma. This exerts a chilling effect as people stay out of trouble by staying out of discussion on issues of legitimate public concern.

Moreover, where a court makes a decision, it tends to have a lasting implication on freedom of expression. It becomes unfortunate if that decision is not just. And, on matters of freedom of expression, there are more than enough examples to point out, indicating, to put it bluntly, outrageous decisions by the courts against journalists and citizens for expressing legitimate opinions on issues of public interest and concern.

Therefore, in framing issues of freedom of expression, more attention should be reserved for a government that may wish to silence dissent using the law. Moreover, we should be as weary of an expressive citizenry making a wayward expression as we should be of law enforcement suppressing expressions for outrageous reasons and of courts making outrageous decisions.

In essence, abusive or threatening language hurts. Writings that cause disaffection hurt. Safeguarding the sovereignty and integrity of the state is duty upon every patriotic citizen and smearing it is a national betrayal that warrants banishment. These terms have been a subject of intense scrutiny by courts and international human rights mechanisms. There is an inclination towards accepting the law as reasonably justified. However, when looked at from more holistic angle, democracies around the world tend to do away with the law simply because doing so serves the greater good of ‘maintaining the benefit of freedom of expression’.

Conclusion

Overall, the draft constitution is a great improvement on the 1997 Constitution. It could be the best project ever to grace our soils since independence. The language is more elegant. A lot more thinking has gone into it. Fundamental human rights are more expounded and expanded. More impressive is the formulation around issues of leadership, the values of the country and duties of the citizens. Besides, it empowers the people and gives more muscle to the institutions of democratic governance than they possibly can carry. The zero draft, if it eventually, comes into force, of course with needed changes, will revolutionise the way power is exercised and politics is conducted. And one cannot but praise the commission for delivering an excellent piece of work and on time.

So much, though, was reasonably and legitimately expected from the constitutional building process in terms of hitting the nail into of what is becoming a coffin of claw-back clauses, anti-free speech practices, a bundle of statutes that undermine standards of freedom of expression and lack of institutional framework to support an independent and vibrant media industry as well as give more bass and protection to the voices of an increasingly expressive citizenry. It is not to be. Not yet, but hopefully by the end of December.

And, lest we forget the common denominator – that in rebuilding after defeating dictatorship, ironclad and purposeful guarantees for freedom of expression, admittedly politicised and misrepresented, provides both a resilient foundation and a torch that shines our way away from darkness and onto the rank of a free, prosperous, inclusive and democratic society.

By Saikou Jammeh:

Disclaimer: The views expressed in this piece do not represent the position of the organisation he works for. It is meant to contribute to the public debate over the issues addressed. The GPU will convene a meeting and come up with a position paper which will be submitted to the CRC.