By Justice Prof. G.W. Kanyeihamba
I received alarming documents, one entitled, “Principles for a Bill to amend the Press and Journalist Act with the main object of Regulating the media”dated May 6, 2009 and another dated January 29, 2010 and called The Press and Journalist (Amendment) Act 2010. The long title to this latter document reads: “An Act to amend the Press and Journalist Act in order to provide for registration of newspapers: to require that the editor of a newspaper shall ensure that what is published is not prejudicial to national security; to rationalise the composition of the Media Council; to provide for licensing of newspapers; to increase the membership of the disciplinary committee; to provide for expeditious disposal of complaints before the disciplinary committee; to provide for offences and penalties and to provide for other related matters.”
At first, I thought these two documents were a kind of a joke from some previous dictatorial regimes where the population has never heard of the words, democracy, freedom, rule of law or freedoms of speech and the press. On closer examination, I discovered the documents originated from the Uganda government. I was astounded because I could not believe that a government which came into power under a popular wave of the quest for democracy, the rule of law, human rights and constitutionalism could harbour ministers and administrators who have abandoned everything desirable about good governance and the liberties of the people in preference to the ghastly misdeeds of past regimes.
When comparisons are made between these documents, a clear picture emerges. The draftsmen or women of these documents appear to have been ignorant or oblivious to the provisions of the Uganda Constitution and the judgments of the Supreme Court on freedoms of expression and the media. If one did not know that such perversions can happen even to principled governments, one would mistake the originators and draftspersons of the first two documents to be out laws and demagogues. But I digress.
What we have in the proposals for new legislation on the freedom of speech, press and media constitute draconian and unacceptable measures that would be a reversal of Uganda’s achievements for more than a generation. They spell out clearly evil intentions to enslave the minds, thoughts and communication of intelligence, knowledge and actions intended to advance good governance and welfare in the country. They should not be the subject of mere criticism and amendment. No. They must be rejected as the most unacceptable devices intended to stifle debate and progress on good governance. There is nothing in them to be salvaged. Whether it be in the media, in the country, in Parliament, in the Judiciary or in Cabinet, there must be coordinated and verbal assault on these proposals because if passed into law, this country would ultimately reap evil from them.
In free and democratic societies, the media are essential tools of governance. They investigate, research into and publish all that is good or bad in society. They alert and educate citizens whether rulers or the governed, about the right and wrong paths in the manner and style, respective governments are behaving and acting in the administration of public affairs.
In countries where monolithic, authoritarian or personalised regimes are the order of the day, the role of the press is either severely restricted or constantly challenged, but also its importance has never been greater or in greater need. Where journalists and reporters are intimidated or persuaded to ‘cooperate’, and become good boys and girls in the judgment of those they are minded to support unconditionally, the truth of what they write or report in the press and other media becomes suspect, their stories are mainly in support of party or government often uninformed or misinformed, unresearched and boring. Yet, as the court said in the case of Government of Republic of South Africa V. Sunday Times Newspaper: “”¦ The press is in the front line of the battle to maintain democracy. It is the function of the press to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetuators. The press must reveal dishonest, mal- and inept administration.
It must also contribute to the exchange of Ideas”¦ The press must act as the watchdog of the government.”
I would go further and say the press and other media must go beyond the role of a watchdog. They must act as the bloodhounds against corruption, abuse of power and bad governance.
The NRM in its glorious days of administration and good governance, was acutely aware of the role the press plays in a free and democratising society. It entertained dialogues with the press and accepted the Constitutional provisions about freedom of information. It initiated the Media Bill which came to be enacted into law.
Generally, freedom of speech includes the right to speak, write or publish whatever one chooses and only subject to other laws of the state.
The freedoms of speech and the press may be exceeded by the publication of treasonable, seditious, defamatory, blasphemous or obscene matter or of inciting mutiny or disaffection in security forces. These offences are of a
criminal nature, but defamation may also be a civil wrong if it deliberately and falsely exposes any person about whom it is published, to hatred, ridicule or contempt or causes him or her to be shunned by other citizens. If the defamation is in writing or other permanent form or medium, it is libel, but if it is confined to spoken words or significant gestures, it is slander.
In the case of Constitutional Appeal NO.2 of 2002, Charles Onyango Obbo and Andrew Mujuni Mwenda V the Attorney General, the Supreme Court of Uganda, Justice Joseph Mulenga correctly criticised the provisions of Section 50 of the Penal Code Act which the court recognised as an impediment on the freedom of the press. Other members of the court agreed with him. In my own judgment in the same case I said, “The freedom of the press is largely unrestricted even if those who exercise it may be prosecuted or sued under a given law aware of the old adage, “publish and be damned’.”
Prof. Kanyeihamba is retired judge of the Supreme Court. This is an edited version of the paper he presented at a public dialogue on the new media legislation and regulation as proposed by the government which would require newspapers to have annual licences to operate. The dialogue was organised by the African Centre for Media Excellence at Serena Hotel on April 30, 2010.