Swaziland Media Commission Bill - Misa Reaction

ISSUES WITH THE DRAFT MEDIA COMMISSION BILL 2009: A SUBMISSION BY MISA-SWAZILAND TO THE MINISTRY OF INFORMATION, COMMUNICATIONS AND TECHNOLOGY Written by Media Institute of Southern Africa – Swaziland Chapter The Media Institute of Southern Africa (MISA) Swaziland Chapter wishes to make the following submissions on the Draft Media Commission Bill the Ministry of Information, Communications and Technology published in the local media on 24 September 2009: 1.

INTRODUTION

MISA-Swaziland notes with great concern that the Ministry of Information, Communications and Technologies (ICT), with due respect, seems to be playing double standards in that it has unilaterally decided to go ahead and propose a statutory media council when it initially endorsed voluntary self-regulation and has been in the forefront of this process with previous Ministers leading it. The question that begs an answer is what has changed? Self-regulation entails that the media fraternity must be in the forefront of such an initiative, and if for any reason they are not then consultations should take place before any move is made on a thing that will affect their operations. If truth were to be told, this process is taking us back to the dark and oppressive regimes where such initiatives were viewed negatively because they were meant to muzzle the media and exert undue control on matters of freedom of expression. As matters stand, it should be stated that freedom of expression is at the core of journalism and media, it therefore goes without saying that any statutory media council will in all fairness severely threaten the right to freedom of expression. It is a known fact that the Government has been on several occasions been communicated to that such an approach defeats the spirit of self-regulation which the media fraternity has already indicated that we were scout for funding elsewhere to see this initiative taking off the ground. Government representatives during the discussion on the famous six media bills were made aware that any form of statutory media council is not at all acceptable. The then Ministry of Public Service and Information was told that in no uncertain terms will the local media accept the Media Commission Bill as it was being proposed by then and supported by the Commonwealth Advisors and the Ministry officials. This Bill in its present format is against the Constitutional provision of freedom of expression as detailed in Section 24. It also contradicts the order of Parliament on self-regulation as stated in the 1997 Parliament report which called for the establishment of such by the media not government alone. Any progress and programme of action should not be done by Government alone, as we had thought that there is already an understanding that whenever such noble course is undertaken at least the key major media stakeholders are part of the process and kept informed. There is therefore mistrust that this initiative is not meant for good of the media and its consumers.

This underground operation and secretive development is also against the very idea of how to constitute a „Self-regulatory‟ mechanism which should involved all concerned and the role of the media sector cannot be overemphasized. To make matters even worse, the Ministry is aware that a process to register a self-regulatory mechanism (Media Complaints Commission) is at an advanced stage, this was communicated to the ministry when MISA made a courtesy call to the present minister in the presence of the Permanent Secretary, Director of Information and Media Development, and other officials within the ministry. It is this unliterary move by the ICT ministry that creates doubts and suspicion, and we wonder what is this hidden agenda is the government employing and why does it now decide to take this route. 2.

SIX MEDIAL BILLS

It is regrettable that the proposed Six Media bills (with the exception of the Media Council Bill) are now shelved and the ministry is singing another tune and has opted to push this one bill instead. Our view is that amongst the shelved Media Bills they were progressive and in line with the regional and international norms and practices. Their intention was to level the playing ground and usher a new landscape that promotes diversity in Swaziland, especially in the broadcasting sector. MISA, stands ready to assist and is still very much supportive of the Broadcasting Bills as they were to help usher the three-tier broadcasting which is long overdue. As to why the government has gone to bed regarding this matter baffles our mind. Also, we were hoping that the community media sector would have been up and vibrant as we speak, but the snail pace at which the ministry is delaying these process of issuing licenses is a major concern to us and one wonders where is the problem in opening the airwaves and promote freedom of expression so that citizens can be availed with multiple voices. To us the licensing of community media sector should be given a priority instead. Rather than pushing one bill at the expense of the others is totally unacceptable and lacks national vision and joint collaborative strategy which media stakeholders were very much in support of. 3.

HISTORICAL CONTEXT

It should be brought to the Ministry‟s attention that the Parliamentary Report on the 1997 Media Council Bill states very clear in its recommendations: “Government and Journalists should establish a self-regulatory Media Council ...” As to why Government has decided to go it alone without the involvements of journalists and media owners in particular is disturbing indeed. The Director of Information was part to the drafting of Information and Media Policy which also states clearly that Self-regulatory mechanism is ideal, and that he is aware of challenges faced by the media in ensuring that Media‟s self-regulatory mechanism is up and running. One will therefore conclude that there seems to be a hidden agenda to criminalize news gathering and that the content of the proposed bill leaves a lot to be desired. It should be put on record that 90% of the work done towards so far towards the establishment of a Media Complaints Commission (MCC) by Media stakeholders under the coordination of SNAJ and MISA should be applauded and supported, as it is within the spirit of what constitutes a Self

Regulatory Mechanism. 4.

MEDIA COMMISSION BILL 2009 AS PROPOSED

Our initial response is that this Bill is unnecessary seemingly that we are already at an advanced stage with the MCC process. Ethos of self-regulation is such that this has proven to be most effective when driven by the media rather than Government through legislative framework. Professionals within the media sector are capable of maintaining and promoting professionalism and ethical standards. It is prudent then to work with the media and ensure that they take the lead. Also there must be a separation of electronic media and print, as they are not regulated under one regulatory regime. Also, the Bill is very much silent on the status of STVA which is both regulator and broadcasting entity. SBIS is a government department and not a public broadcaster, so it will not be wise to regulate its content under the present status unless it is first transformed to become a fully fledge Public broadcaster. We have, however, gone through the Bill as it is proposed and would like to raise the following concerns: 3.1 It should be stated that we feel it is a great misinformation to advertise the SNAJ Code without an agreement with the Media Stakeholders, and not the Media Bill itself. There is therefore obvious a deliberate misinformation of the public in this regard. The ministry should advertise the Bill in its entirety not the SNAJ‟s code so that people can be availed with accurate information. There should be ample time given to civil society and this could be accompanied by information dissemination exercise as part of orientation and empowerment of the citizens so that people are made aware of the content and implications of the draft Media Commission Bill as it stands. 3.2 The Memorandum‟s Objectives while at a glance look acceptable but on closer look do not seek to promote ethical and professionalism rather want to enforce a punitive agenda especially (e) when it want to provide incidental matters…What are these incidentals matters? 3.3 This Proposed Bill will be an Act of Parliament and therefore defeats the reasons for establishing a „Self-regulatory‟ mechanism. Freedom of Expression and that of the media is not founded on law but Human Rights; therefore it‟s a big NO to any attempt to cloud this process with a Parliament Act that will become law. 3.4 Part 11… Independence of the Commission (4): The proposed Bill states that the Commission will be independent and not subject to the direction or control of any person or authority in the performance of its functions. We object to this notion and raises the fact that since it will be appointed by a Minister (5) it is therefore not acceptable if we speak of a selfregulatory mechanism- Let the Media stakeholders take charge of the process not „politicians‟ who themselves are sources of news. The appointing authority should not be a government agent or minister for that matter; rather it should be undertaken by the Media stakeholders in a transparent process.

3.5 The Composition of the Commission (5) – The minister will appoint the 12 commissioners and this is totally unacceptable in self-regulatory mechanism processes, politicians should have no part to play as their newsmakers and interested party. While it is wise to consider a wider representation of the Civil society and the Media, it is very much worrying that the bill seeks to accommodate „Traditional institutions‟ when in actual fact that should be referring to other Swazis who are first Swazis before anything else. The representation is too big and cumbersome and it will be prudent to keep it small between 6-8 people. The Bill allows for the appointment of a part-time Secretary, which if we are serious about this exercise this should be a fully-fledged secretariat as media complaints are being raised on a daily basis. 3.6 Powers of the Commission 7. We have a big problem with corruption cases referred to the Commission instead of Anti-Corruption Commission. This Commission should concern themselves with Professional issues not corruption as such; after all it is not a court. 3.7 Power of the Commission 8. It is wrong to summon and enforce attendance if we are talking of self-regulations mechanism, this should be voluntary and as such only members of the media who has declared their interest in this peer review commission should appear and answer for professional flaws. The powers given to summon is against the principles of freedom of expression and the Constitution guarantee if receiving and holding information. It should be made clear as to how the commission will receive evidence and the time frame should be stated and not left hanging (8.3). It is wrong to require and inspect or even force access records or documents because that is against journalistic practice as sources remain the privilege of the scribe and that information is given in trust and confidence. 3.8 Technical Committee; The Minister‟s involvements is not acceptable at all, rather it will be prudent that a transparent process where the Media Stakeholders (Media Owners, editors, journalists in particular) and civil society drives this process. Minister should have no part in any choosing or selection. The Minister is given a blank check in the appointment of the technical committee in 9.3 3.9 Complaints Procedures 17 (3)…It is regrettable that the Commission will order (f) COSTS and suspension of registration. As it stands this is totally unacceptable because then the Commission becomes a court and this is totally against the spirit of as self-regulation. 3.10 Funding of the Commission- While it is undeniable fact that Government is a media owner, one wonders if there is logic in receiving funding from government for a selfregulatory mechanism (Complaints Commission) because then there is bound to be biases on cases that involves the government because you cannot bite the hand that feeds you. 3.11 Complaints (16) there should be a time frame stipulated for complaints, to leave it blank like this could be open to abuse by members of the public. 3.12 17.3 (d) imply the commission will order a media house to publish apology, correction and retraction…This is editorial interference and it‟s not acceptable. As for the imposition of any condition for the suspension of registration …. This interferes with the rights of freedom of expression and interferes with the rights to access information. 3.13 It is not in the spirit of a self-regulatory mechanism to report to Parliament for its finances and as to why the minister should report on its behalf is not clear. The Commission

should report to its own structures and members. Section 22, 23 and 24 is not acceptable at all and should be deleted altogether. MISA REJECTS THE BILL In view of the above, MISA Swaziland totally rejects the Bill in its entirety. Other reasons for rejecting the Bill are: • That it is against government‟s own Media Policy of October 2005 which promotes media self-regulation. • The Bill also contradicts a 1997 Parliamentary resolution for the government to assist the Swazi media in setting up a voluntary self-regulatory mechanism. • The Bill, by its nature, will in practice limit press freedom and freedom of expression in the country and, to that extent, it seriously violates the national Constitution as it breaches Section 24 of the Constitution by limiting press freedom. • The Bill, in its entirety, further contravenes the 2002 Banjul Declaration of Principles of Freedom of Expression in Africa which states that effective self-regulation is the best system of promoting high standards in the media. Swaziland is also a signatory to this Declaration. • The Bill, in its entirety, also contradicts Section 21 of the SADC of the SADC Protocol on Culture, Information and Sport (2001), signed by all Heads of States in the SADC region, including His Majesty King Mswati III, which obliges member states to encourage the establishment or strengthening of codes of ethics by various sectors of the media through the creation of an enabling environment for the formulation of such frameworks. MISA Swaziland‟s view is that encouragement is the opposite of imposition using the force of law. WAY FORWARD As a way forward, MISA Swaziland recommends that the Swaziland media be allowed to operationalise the Media Complaints Commission, which is a self-regulatory process currently nearing completion. To this end, MISA Swaziland urges the Ministry of ICT to abandon the Media Commission Bill, 2009 in preference of media self-regulation. October 2009