By Sulayman Bokar Bah
The provision for the establishment of an independent media regulator is consistent with best standards of international practice. Example of countries that adopt an independent approach to broadcast media regulation includes UK, US, and in West Africa are Ghana, Nigeria and Sierra Leone.
Its principal concept is for the media to be free from direct government control through regulation. Therefore, it is a question of considerable importance to understand what the draft constitution provides for on media regulation in The Gambia. Section 47(6) of the Final Draft Constitution states that an Act of the National Assembly may establish an independent regulator with responsibility for:
(a) regulating the provision of broadcasting and communications services in the public interest; (b) ensuring fairness and diversity of opinion; (c) awarding licences in a fair and transparent manner; (d) the equitable allocation of frequencies and regulation of related matters between private and public broadcasters; and (e) setting media standards, and regulating and monitoring compliance with those standards.
Here, the constitution permits for the establishment of an independent regulator for broadcast media and other communication providers by an act of parliament. Therefore, the authority for the establishment of an independent regulator is vested in the National Assembly. This is similar to the system of statutory regulation for the broadcast media in the United Kingdom, where television and commercial radio broadcasters are regulated by an independent body called Office of Communications (Ofcom).
Therefore, it is important to understand the nature of an independent statutory regulatory body. In short, an independent regulatory body is backed by law and independent from direct State control. However, there can be concerns of government interference particularly if members of the authority are appointed by a government minister.
I believe that the establishment of an independent regulator would mean a total departure from the existing system of regulation under the Public Utilities Regulatory Authority (PURA). The authority was set up under the PURA Act 2001 to enforce the Information and Communication Act 2009 that provides to restructure, develop and regulate Gambia`s information and communication sector.
The two legislations provides for direct government control of the broadcast media, as radio and television licensing applications are made through PURA, which advises the Minister of Information for the issuance of licenses. Additionally, the Information and Communication Act 2009 confers powers to the Minister to renew, revoke or suspend a broadcasting license. This system of direct government regulation has several disadvantages to media freedom such as the suppression of independent and critical journalism.
I argue that an independent regulatory approach is more suitable for protecting media freedom. It also brings along several benefits, including freedom diversity of views and media pluralism. A statutory independent regulator would also have powers that are legally binding, and can impose penalties including fines, or suspension from broadcast or publication. Moreover, under section 47(6) of the final draft, the responsibilities of the independent regulator can be broken into two constituent parts, which are economic and programming content. Firstly, the independent regulator determines who owns a broadcaster to benefit from the business of journalism. Secondly, it monitors programming content to ensure that broadcasters serve the common interest of society, and can reprimand them for inflammatory or defamatory programmes, political biases, indecent and profane content.
Finally, it is my view that the draft constitution provision for the establishment of an independent regulator is a standard approach to balancing media rights and responsibilities, with a view to promoting pluralism and best standards of practice.
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