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 self-
regulatory 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 self-
regulatory 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