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UCRA Bill Memorandum

UCRA Bill Memorandum

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Summary of Article 19's analysis of the Uganda Communications Regulations Bill.
Summary of Article 19's analysis of the Uganda Communications Regulations Bill.

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Published by: Magelah Peter Gwayaka on May 23, 2012
Copyright:Attribution Non-commercial


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Uganda: Communications Regulatory Authority Bill.
In March 2012, the Government of Uganda tabled the Communications Regulatory Authority Bill,2012 (the Bill), a major piece of legislation intended to consolidate and harmonise two existingand overlapping laws – the Uganda Communications Act and the Electronic Media Act – andmerge the regulators they establish into a single Communications Regulatory Authority (the Authority). The resulting Bill principally covers broadcasting, telecommunications and postalservices, but also contains provisions on cinemas and video libraries. ARTICLE 19 welcomes the initiative to create a more coherent legal framework governing thesesectors. Moreover, the Bill contains a number of positive features. It places significant emphasison making communications services widely available at affordable rates, and proposes innovativefunding arrangements for the Authority, which will minimise its reliance on funding allocated byParliament – thus potentially enhancing its independence. At the same time, the Bill does not comply with international standards
in numerous ways. Thefollowing issues are of primary concern and require addressing to ensure compliance withUganda’s obligations to protect the right to freedom of expression and opinion under internationallaw:
1. Independence of the Authority from Government:
The Bill should explicitly recognise that any public authority exercising powers in theareas of broadcast or telecommunications regulation should be independent andadequately protected against interference, particularly of a political or economic nature.
Clause 7 should require the Authority’s Board and staff to operate in an independent andimpartial manner at all times, while external persons and entities should be prohibitedfrom improperly influencing or interfering with the Authority’s work.
2. Membership and appointments process of the Authority
Independence of the Authority can only be secured if its membership is also independentand insulated as far as possible from political or commercial inference.
The ICT Minister and the Cabinet should not play a role in the selection of members of the Authority’s Board. Nominations should be solicited from civil society, professionalorganisations or the public at large, and appointments should be made by Parliament in amanner that ensures broad cross-party support, after an open process allowing for publiccomment. The Authority’s Director-General should be appointed and as necessaryremoved by the Board.
The analysis is based on the right to freedom of expression as contained in Article 19 of theInternational Covenant on Civil and Political Rights, Article 9 of the African Charter on Human andPeoples’ Rights, and the Declaration of Principles on Freedom of Expression in Africa, adoptedby the African Commission on Human and Peoples’ Rights. These standards are alsoencapsulated in the ARTICLE 19 publication Access to the Airwaves - Principles on Freedom of Expression and Broadcast Regulation (London, March 2002), available at: available athttp://www.article19.org/pdfs/standards/accessairwaves.pdf .
Authority board members should have fixed-terms of service of three years, and theseshould be staggered to ensure continuity of operation. There should also be an unevennumber of board members, rather than the current 8 – to avoid the risk of vote splits.
The list of individuals not eligible for board membership (clause 9) should be broadened.Civil servants and other employees of any branch of government, whether appointed or elected, or who hold office in or are an employee of a political party should be added tothe current list. Ineligible candidates may be nominated but must be given a reasonabletime to eliminate any barrier to membership. Persons who have been convicted of aserious crime or a crime involving dishonesty should also be ineligible to serve, unless asubstantial period of time has passed since the conviction.
Membership should, as far as possible, represent a broad cross-section of Ugandansociety, including in terms of gender balance.
The same independent body responsible for appointing members to the Authority’sboard, such as a cross-party committee of Parliament, should also be responsible for removal decisions (Clause 10). This process must be transparent to the public.
The remuneration and allowances of the Authority’s Board members should be set byParliament, not the ICT Minister (Clause 12). There should be no discretion in relation toindividual members, or should be set in a fixed proportion to some other measure, suchas the salary paid to ministers.
3. Accountability of the Authority to the public.
The Authority should be accountable to the public. Its meetings and documents should inprinciple be open to the public and it should organise public consultations prior toadopting major decisions or policies.
The Authority should be required to submit its annual report on its activities, including itsaudited accounts, to Parliament and to publish this report online. It should not be requiredto submit any reports to the ICT Minister as Clause 4(2) currently requires.
4. Too much discretion conferred upon the Minister responsible for ICT.
The Minister responsible for ICT is given far too many powers without the appropriateaccountability mechanisms, including approving its budget, appointing and dismissingmembers of its Board, and issuing binding guidelines to them.
 Parliament, rather than the ICT Minister, should be responsible for approving the Authority’s budget and any loans, grants, gifts and donations it wishes to accept. 
5. Broadcast Policy
Clauses 2 and 4 should make a clear statement of the Bill’s purpose. Promoting the rightto freedom of expression and the free flow of information should be central to this.
The Authority should be required to ensure that the programmes it is obliged to promotereflect and serve society as a whole, including vulnerable or marginalised groups, byproviding access to a wide range of information and viewpoints in a wide range of languages.
The promotion of pluralism of broadcasting organisations and media ownership must becentral to the law, in addition to the tackling of anti-competitive behaviour.
The broadcast policy should specifically incorporate a binding international human rightsinstrument, such as the International Covenant on Civil and Political Rights or theDeclaration of Principles on Freedom of Expression in Africa, as guidance.
Clause 6, which gives the Minister the power to issue binding “policy guidelines” shouldbe scrapped.
6. Frequency Planning
 The broadcasting landscape the Authority should pursue must be made clearer in the Bill.The Authority should be made responsible for the development, in an open andparticipatory manner, of a frequency plan for those frequencies allocated for broadcasting. 
 The plan should ensure that the available frequencies are shared equitably and in thepublic interest among the three tiers of broadcasting (public, commercial and community),the two types of broadcasters (radio and television) and broadcasters of differentgeographic reach (national, regional and local). 
7. Broadcast Licensing
 The technical criterion for determining eligibility for a broadcasting license is currentlydivided between Clauses 25(2) and 40(2). These provisions should be consolidated intoone.
Political parties should not be eligible for a broadcasting licence, but should haveequitable access to the airwaves.
 The selection criterion in clause 25(2) (d) of the Bill that “social, cultural and economicvalues” should be considered is too vague and broad and should be deleted. Threeadditional criteria should be considered: whether the proposed service (1) contributes tothe realisation of the frequency plan; (2) promotes the availability of a wide range of viewpoints; (3) contributes to diversity of media ownership. 
The Authority should be prohibited from imposing any licence condition that does notserve the objectives of the Bill (Clause 4).
The Authority should set out a schedule in advance establishing the duration and cost of different types of broadcasting licences.
There should be a presumption of licence renewal, which can be overcome if continuation of the service is no longer in the public interest (Clause 45).
Decisions to modify the conditions of a licence should be subject to judicial review beforean independent and impartial court, rather than review by the ICT Minister.
The requirement in Clause 26 that “persons licensed by the Authority to install or operatea radio or TV station or communications apparatus to register with the Media Council” isunnecessary.
8. Frequency allocation
High-value frequencies should be awarded through a properly announced tender procedure, while licenses for frequencies in underserved areas and for communitybroadcasting should be made available on a rolling basis.
9. Licensing of television sets, cinemas, video or film libraries
There should be no requirement for the licensing for the ownership of these materials.The provision serves no purpose and will be expensive to enforce. Registrationrequirements in this respect found in Clauses 33 and 39 respectively are unnecessaryand should be removed.
9. Content-based restrictions.
It is appropriate to adopt a regulatory system that ensures that broadcasting contentserves the public interest. However, effective self-regulation is the best system for promoting high standards in the media, and any prescriptive content restrictions arepotentially dangerous for the right to freedom of expression.
The content-based restrictions in the Law are far too broad and vaguely defined. Inparticular, Clauses 29(a) and 32 of the Bill, requiring broadcasters to respect “publicmorality” and “ethical broadcasting standards”, should be deleted. Similar provisionsrequiring parties to “ensure harmony” and to refrain from the “distortion of facts” aresimilarly problematic.
The Bill should stipulate that the Authority will not enforce any content rules on a subjectwhere the broadcasting sector has implemented an effective system of self-regulation.
Clause 31 should be amended to state that the Authority may develop minimumbroadcasting standards in consultation with licensed broadcasters and the public at large.
Any person resident in Uganda should be permitted to complain to the Authority aboutbroadcast content, since all residents are potential consumers.

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