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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 existing and overlapping laws – the Uganda Communications Act and the Electronic Media Act – and merge the regulators they establish into a single Communications Regulatory Authority (the Authority). The resulting Bill principally covers broadcasting, telecommunications and postal services, but also contains provisions on cinemas and video libraries. ARTICLE 19 welcomes the initiative to create a more coherent legal framework governing these sectors. Moreover, the Bill contains a number of positive features. It places significant emphasis on making communications services widely available at affordable rates, and proposes innovative funding arrangements for the Authority, which will minimise its reliance on funding allocated by Parliament – thus potentially enhancing its independence. At the same time, the Bill does not comply with international standards in numerous ways. The following issues are of primary concern and require addressing to ensure compliance with Uganda’s obligations to protect the right to freedom of expression and opinion under international law: 1. Independence of the Authority from Government: • The Bill should explicitly recognise that any public authority exercising powers in the areas of broadcast or telecommunications regulation should be independent and adequately 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 and impartial manner at all times, while external persons and entities should be prohibited from 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 independent and 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, professional organisations or the public at large, and appointments should be made by Parliament in a manner that ensures broad cross-party support, after an open process allowing for public comment. The Authority’s Director-General should be appointed and as necessary removed by the Board. The analysis is based on the right to freedom of expression as contained in Article 19 of the International Covenant on Civil and Political Rights, Article 9 of the African Charter on Human and Peoples’ Rights, and the Declaration of Principles on Freedom of Expression in Africa, adopted by the African Commission on Human and Peoples’ Rights. These standards are also encapsulated in the ARTICLE 19 publication Access to the Airwaves - Principles on Freedom of Expression and Broadcast Regulation (London, March 2002), available at: available at http://www.article19.org/pdfs/standards/accessairwaves.pdf.
Authority board members should have fixed-terms of service of three years, and these should be staggered to ensure continuity of operation. There should also be an uneven number 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 to the current list. Ineligible candidates may be nominated but must be given a reasonable time to eliminate any barrier to membership. Persons who have been convicted of a serious crime or a crime involving dishonesty should also be ineligible to serve, unless a substantial period of time has passed since the conviction. Membership should, as far as possible, represent a broad cross-section of Ugandan society, including in terms of gender balance. The same independent body responsible for appointing members to the Authority’s board, 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 by Parliament, not the ICT Minister (Clause 12). There should be no discretion in relation to individual members, or should be set in a fixed proportion to some other measure, such as 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 in principle be open to the public and it should organise public consultations prior to adopting major decisions or policies. • The Authority should be required to submit its annual report on its activities, including its audited accounts, to Parliament and to publish this report online. It should not be required to 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 appropriate accountability mechanisms, including approving its budget, appointing and dismissing members 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 right to 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 promote reflect and serve society as a whole, including vulnerable or marginalised groups, by providing 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 be central to the law, in addition to the tackling of anti-competitive behaviour. • The broadcast policy should specifically incorporate a binding international human rights instrument, such as the International Covenant on Civil and Political Rights or the Declaration of Principles on Freedom of Expression in Africa, as guidance. • Clause 6, which gives the Minister the power to issue binding “policy guidelines” should be 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 and participatory manner, of a frequency plan for those frequencies allocated for broadcasting.
The plan should ensure that the available frequencies are shared equitably and in the public interest among the three tiers of broadcasting (public, commercial and community), the two types of broadcasters (radio and television) and broadcasters of different geographic reach (national, regional and local).
7. Broadcast Licensing • The technical criterion for determining eligibility for a broadcasting license is currently divided between Clauses 25(2) and 40(2). These provisions should be consolidated into one. • Political parties should not be eligible for a broadcasting licence, but should have equitable access to the airwaves. • The selection criterion in clause 25(2) (d) of the Bill that “social, cultural and economic values” should be considered is too vague and broad and should be deleted. Three additional criteria should be considered: whether the proposed service (1) contributes to the 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 not serve 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 before an 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 operate a radio or TV station or communications apparatus to register with the Media Council” is unnecessary. 8. Frequency allocation • High-value frequencies should be awarded through a properly announced tender procedure, while licenses for frequencies in underserved areas and for community broadcasting 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. Registration requirements in this respect found in Clauses 33 and 39 respectively are unnecessary and should be removed. 9. Content-based restrictions. • It is appropriate to adopt a regulatory system that ensures that broadcasting content serves the public interest. However, effective self-regulation is the best system for promoting high standards in the media, and any prescriptive content restrictions are potentially dangerous for the right to freedom of expression. • The content-based restrictions in the Law are far too broad and vaguely defined. In particular, Clauses 29(a) and 32 of the Bill, requiring broadcasters to respect “public morality” and “ethical broadcasting standards”, should be deleted. Similar provisions requiring parties to “ensure harmony” and to refrain from the “distortion of facts” are similarly problematic. • The Bill should stipulate that the Authority will not enforce any content rules on a subject where the broadcasting sector has implemented an effective system of self-regulation. • Clause 31 should be amended to state that the Authority may develop minimum broadcasting standards in consultation with licensed broadcasters and the public at large. • Any person resident in Uganda should be permitted to complain to the Authority about broadcast content, since all residents are potential consumers.
10. Searches of Broadcasters’ Premises • A warrant issued by a Magistrate should be required for searches of broadcasters’ premises as well as private dwellings. The Bill should state that no warrant may be issued where a search has as its goal or likely consequence that the identity of a confidential source for a news story will be disclosed. 11. Sanctions for licence breaches • The provisions on the application of sanctions in case of breach of licence conditions should be reviewed for consistency and readability. It should be made explicit that sanctions will be applied in a graduated fashion, starting with a warning or fine, with suspension or revocation of the licence reserved for very serious cases, or where other remedies have had insufficient effect. • The ICT Minister should not have the authority to compel an investigation by the Authority; Clauses 53(2) and 54(2) of the Bill should be deleted. • Licence holders should be guaranteed the right to make representation any time a complaint against them is investigated. • Involvement in “treasonable offences” is too vague a ground for licence suspension or revocation and should be removed from the Bill. 12. Communications Tribunal • Part XI of the Bill should be deleted. There is no need for a dedicated Communications Tribunal. Cases arising from the Bill can be heard by the High Court, which could set up a specialised chamber as necessary. Alternatively, a significant overhaul is necessary to ensure the ICT Minister, and the Government more generally, have no powers that can be used to improperly influence the Tribunal – such as the power to remove judges. -END-
• • For ARTICLE 19’s full legal analysis of the Communications Regulatory Authority Bill, see: http://www.article19.org/data/files/medialibrary/3048/12-04-18-LA-uganda.pdf For ARTICLE 19’s publication Access to the Airwaves - Principles on Freedom of Expression and Broadcast Regulation (London, March 2002), available at: available at http://www.article19.org/pdfs/standards/accessairwaves.pdf.
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