BEING A DISCUSSION PAPER ON "THE
REGULATORY FRAMEWORK FOR MEDIA
INSTITUTIONS IN NIGERIA: FREEDOM OF
EXPRESSION",
PRESENTED BY MR. KUNLE SANYAOLU,
TRAINING EDITOR/MEMBER,
EDITORIAL BOARD, THE GUARDIAN
NEWSPAPERS, RUTAM HOUSE, ISOLO, LAGOS.
AT THE MEDIA RIGHTS AGENDA/WORLD BANK
INSTITUTE WORKSHOP ON 'MEDIA
INSTITUTIONS AND CAPACITY IN NIG'ERIA',
HOLDING IN LAGOS (REGENCY EXCLUSIVE HOTEL) FROM OCTOBER 18 TO 20, 2005.
The Regulatory Framework for Media Institutions in Nigeria: Freedom of Expression
To my mind, the key phrase in this topic is “Freedom ofexpression". Freedom of expression is practically the same thing asfreedom of the press or freedom of the media. A freedom to expressone's opinion or views on any matter is necessarily limited if it canonly be exercised on a closed basis. The instrumentality of the media is all-important for freedom of expression to be truly meaningful. Iseek to examine some of the regulations of media institutions inNigeria in relation to freedom of expression.
The most basic of regulations governing media institution is ofcourse the 1999 Constitution of the Federal Republic of Nigeria. Itsays in section 39(1) under Fundamental Human Rights provisions,that: “Every person shall be entitled to freedom of expression,including freedom to hold opinions and to receive and impart ideasand information without interference." Incidentally, this, most crucialsection is labelled" right to freedom of expression and the press."That label does not confer any special right of free expression to thepress. Obviously the authors of the constitution did not consider itnecessary to grant the press any right over and above that granted thecitizen. This is and has remained a fundamental miscalculationbecause as we pointed out earlier, an individual is not able to derivefull benefits from provision of section 39 if he is not availed of theinstrumentality of the press. To this extent, the Nigerian constitutionhas not been sufficiently liberal in promoting real freedom ofexpression. Besides, section 39 contains no guarantee for protectingpress freedom because of the absence of any provision affirming theright to seek, obtain and publish information without restraint.
Subsection (2) of section 39 allows any person to own, establishand operate any medium for the dissemination of information, ideasand opinions, provided that persons wishing to establish and operatetelevision or wireless broadcasting station have the consent ofgovernment. Such consent may be granted at the fulfillment of certainconditions. Notwithstanding this supposed freedom, the government isempowered, under subsection (3), to enact laws to prevent thedisclosure of information received in confidence; of informationrequired to maintain the authority and independence of the courts orregulating telephones or wireless broadcasting etc; or to imposerestrictions upon public officers from divulging information to thepublic or to the press. Many people have interpreted this provision; along with the restriction in section 45, to mean that what theconstitution gave with one hand, it took with the other. This assertionhas been buttressed several times by failure of government to disclose,or to disclose fully, information many consider to be of publicinterest. Even in recent years, government has apparently hiddenunder this provision to deny Nigerians of the methodology of takingdecisions.When a government-instituted panel recommends anaction, government ultimately jettisons the recommendation and adopta different measure, leaving the public to wonder why so much publicresources should be expended in the first place on a matter thatgovernment had taken a fixed stand.
It is sufficient to point out that governments over the years haveused the 1962 Official Secrets Act, and its subsequent amendments, toback up these constitutional limitations. The Official Secrets Actprincipally denies access to official information by providing for theclassification of such information. This documents containinginformation that concern the public are marked 'confidential', 'topsecret', 'restricted', 'classified' and so on. Publishing suchinformation can earn a person prison terms and fines,[particularly a public official who obtains, reproduces, retains or transmits anyclassified matter to a person to whom he is not authorised on behalf ofthe government to so transmit. Perhaps the most important restrictionto freedom of expression posed by the Official Secrets Act is the onedemonstrated in the case of Tony Momoh V. Senate. In the case, aLagos High Court in a judgment upheld the journalist’s right toconfidentiality of his source, but the Court of Appeal later upturnedthe Judgement, meaning that journalists have no legal or constitutional protection to guarantee the confidentiality of their source. The wholescenario therefore is one that discourages free flow of information andexpression.
Yet, the same 1999 constitution, in spite of the validity of theserestrictive laws, implied a sacred duty on the press in section 22, tothe effect that the press, radio, television and other agencies of themass media shall at all times be free to uphold /fundamentalobjectives. These are contained in Chapter Two, dealing withFundamental Objectives and Directive Principles of State Policy. Inthat section, the press is given a duty to "uphold the responsibility andaccountability of the government to the people." This is an onerousduty because it encapsulates virtually the essence of government andgovernance, including sovereignty of the people; the basicrequirement of government to work primarily for the security andwelfare of the people and of course, promotion of democratic ideals.These are areas in which governments of the day in Nigeria, be itFederal or State, have been found wanting. Moreover, Chapter Two ofthe constitution, as central as it is to the national questions ofnationhood and development, is non-justiceable. It means that whilejournalists can be prevented from carrying out their professional andconstitutional duty, or even punished for doing this, through theinvocation of other laws, the citizen or journalist has no legal remedyfor failure of public officials to perform government's duty.
If the Nigerian citizen and the press are to really enjoy the freedom of expression in section 39, the easiest measure is tostrengthen the provision as highlighted. We can emphasise the needfor a special protection and guarantee for the press and~ even make itpossible for the court to intervene in complaints under chapter two.However, this will mean an attempt to amend the constitution. Whilethis maybe ideal, it will be foolhardy to ignore the fact that hardly hasany amendment been recorded in the history of constitutional democracy in Nigeria. Besides, such amendments are unlikely to fullyresolve all obstacles in the way of free expression. It is suggested that enactment of the proposed freedom of Information Bill, which ispending before the senate, can help to resolve the discrepancies.
In June 2000, the Senate President at the time, Pius Anyim Piuspromised that the National Assembly was posed to repeal allobnoxious, anti-media laws in the statute books. He listed some of thelaws to include the Newspapers Ordinance Act 1917, Official SecretsAct No. 29 of 1963 and its Amendment Act No. 30 of 1969, thePrinting Press Regulation Act 1964, section 58 of Criminal Code Actof 1988 (dealing with power to prohibit importation of publication),National Archives Act and Treason and Treasonable Offences Act.Sadly, three years after, no serious attempt is being made to repeal thelaws. The current Senate President, Ken Nnamani, appears to be an enthusiast of freedom of information and expression. At the publichearing on Freedom of Information Bill on April 26, 2005 Nnamanideclared:
“The right to know is a fundamental right. But more than that,the right to know has instrumental value. People can only hold theirleaders and institutions accountable when they have information abouthow government works. Constructive criticism is impossible if factsand figures are under locks and keys. To unleash the potential forgood governance, we need to unlock the storehouse of publicinformation to enable the people of Nigeria hold their representativesaccountable. "
It should be noted however that the proposed bill is yet to be passedby the Senate. This bill is widely held to be desirable, yet it has takensix years for it to get to its present stage, which is far from its finaldestination. It is suggested that the delay in passing the bill to law is acontinuing infringement on the constitutional guarantee of freedom ofexpression of Nigerians.
A discussion on the regulatory framework for media institutionsin Nigeria brings to mind the fact that the country, in its chequeredhistory has witnessed so many attempts to whittle down the power ofthe press and ultimately restrict freedom of expression. The lawsaffecting media performance are too numerous to mention here. Theyinclude the Newspapers Act 1917, Press Registration Act 1933, andthe Criminal Code Act as it provides for sedition, injurious falsehood, criminal defamation, power to prohibit importation ofpublication,seditious publication against foreign head of state and contempt ofcourt. The laws also include Children and Young Persons (HarmfulPublication) Act 1961, Defamation Act, 1961, Emergency Power Act,Obscene Publication Act 1961, Official Secrets Act 1962, NigerianMedia Council Decree 59 of 1989; Nigerian Press Council Decree 85of 1992; National Broadcasting Commission Decree No 38 of 1992,Treason and Treasonable offences Decree 1993 and the NewspapersDecree 43 of 1993.
It is true that some of the laws are imbued with good intention. Manyothers such as the Public Officers (Protection Against FalseAccusation Decree 4 of 1984) were clearly enacted to muzzle thepress and curtail freedom of expression. More of such laws were to beenacted or re-enacted in the run-up to the June 12, 1993 presidentialelection that was annulled.The Nigerian press deserves morewholesome laws and less restriction for it to perform its duty underthe constitution and in line with worldwide trend of democracy andfree expression.
By and large, these laws i.e. those still in existence, constitute asection of the regulatory framework for media institutions in thiscountry. Mention must be made of the law of Defamation, whichmakes the media or their practitioners liable for publicationconsidered being injurious to the physical, mental, economic andsocial health of a private person. Without doubt, penalties accruingfrom libel suits, along with the huge cost of running the suits, havebecome major sources of worry for media organisations. Thephenomenon could have been responsible for untimely closure ofsome newspapers and magazines. But there are other regulatoryparameters:
1.PROFESSIONAL ETHICS
This necessarily extends from professional standard. Journalism practice has a list of do's and don'ts which have combined tobecome its ethics. If for instance a reporter mistakenly portraysMr. X as a barber when in fact he is a psychologist, ethicsdemand that he makes correction as soon as he knows the trueposition. Such correction does not necessarily need to beprompted by a threat of legal reprisal against a mediaorganisation. Nonetheless, recognition of the effects ofmisrepresentation has an effect on freedom of expression.
2.OWNERSHIP
The adage remains true of all times that "he who pays the piperdictates the tune." Media organisations therefore will normallyrefrain from publishing materials considered to be adversarial tothe interest of the proprietors. All the same, an organisation thatintends to survive in the Nigerian media scene cannot afford tohide or misrepresent the truth where this is of public interest.
3.ADVERTISERS INFLUENCE
Often, advertisers seek to present a story for publication as anaddendum to a proposed advert. Freedom of expression may becompromised if the medium agrees, even though its survival islargely dependent on advertising revenue. In the long run, it isbetter to stick to professional standard and seek a wider revenuebase.
4.IN-HOUSE MECHANISM
Some organisations are very sensitive about professionalstandards and have set up formal or informal machinery withinto monitor practice. They emphasise freedom of expression, butwith balance. And they embark on regular training, workshopsand seminars to keep their personnel abreast of qua1ity.
5.NIGERIAN UNION OF JOURNALISM (NUJ)
All along, the NUJ has existed both as a professional body andas a trade union. But the latter activities seem to have takenmost of its time and resource. The relative instability in themedia industry, coupled with the low earning capacity ofjournalists have not enabled the NUJ to perform,its watch dogrole on journalists. The body still remains afactor for therealisation of ideals, including freedom of expression.
6NIGERIAN GUILD OF EDITORS (NGE)
As an organisation embodying senior professionals on top ofthe media hierarchy, the NGE tries to act as a stabilising factoror as an opinion moulder in times of distress. It cannot afford tocompromise the best of professional conduct. But the bodyappears to be too engrossed with its local politics to have anyappreciable regulating impact on the industry.
7.NIGERIAN PRESS ORGANISATION (NPO)
The NPO is composed of the NUJ, the NGE and the Newspaper Proprietors Association of Nigeria (NP AN). The idea is to poolresource together at all levels and present a formidable frontagainst forces that tend to undermine the best in media practice.To achieve a meaningful regulatory status, the NPO needs an appropriate legislation to back it.
8.NIGERIAN PRESS COUNCIL (NPC)
Both the government and media practitioners agree that there isneed to regulate media practice and set minimum qualificationstandard for practitioners. For years, the agreement ended atthat point as efforts to formulate provisions of the NPC hadalways ended up in disagreements. In the past few years, there had been concerted efforts by the stakeholders to resolve thedifferences. When this is finally achieved, the KPC can be areliable regulatory agency.
CONCLUSION
In the last six years, the Nigerian media institutions have enjoyed animproved freedom of expression, compared with what obtained in the14 years preceding 1999. This is largely an outcome of civiliandemocratic government of the day, rather than any strengthening ofmedia institutions regulatory framework. For instance, some principalactors are currently on trial for alleged treasonable felony withoutinvolving any media organisation. All the same, there is need tostrengthen the regulations. No one should expect a genial governmentall the time. Fear is even rife that the present governments, at Federal and state levels, are tending to be dictatorial. In case of a full-blowndictatorship, the media should expect to be among the first victims. Itmust therefore fortify itself against such potential.
The Media Rights Agenda (MRA) has done a remarkable workin 2001, in assembling stakeholders to discuss a draft of the Nigerian Media Bill. Similarly the MRA has spearheaded, Freedom ofInformation Coalition towards the presentation of the Freedom ofInformation Bill, which is in the last stages of being enacted into law.Considering the wide acceptability of these drafts as well the highinput they have enjoyed from stakeholders, their passage into law mayjust be all that is required to perfect freedom of expression at the levelof regulation. More than this, I believe that one of the greatest threatsto freedom of expression, apart from restrictive laws, inthe I-don't-care attitude of our government to the aspirations and lamentations ofthe Nigerian masses. The recent fuel price increase is a case in point.
By necessity, this presentation cannot be exhaustiveconsidering that we are trying to cover monumental events thattranspired for more than 40 years. I thank the MRA and the WorldBank Institute for giving me the opportunity to participate in thisworkshop.
Thank you.