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New Press Council Bill cannot be enforced (2)

By Tony Momoh

This is the second part of the presentation by Prince Tony Momoh, former minister of information and culture, at the public hearing of the Nigerian Press Council and Practice of Journalism in Nigeria Bill held on Monday, November 16, 2009 in Abuja. The first part was published last week

THE Council had to concentrate on other areas of its functions. Apart from the  Complaints Committee was the Registration and Disciplinary Committee which was to work with the NUJ to produce a register of Journalists. No such register was ever produced and handed over to the Council.

The Research and Documentation Committee published all the material which this public hearing should have access to, to help in further work on the bill if it is decided that the bill is necessary in the form and format it is presented. The Rights and Privileges committee looked at the laws in the books and how useful or harmful they were in the development of a democratic culture.

Its brief included looking at conditions of service of journalists, among others,  but discovered the overbearing effect on media establishment, ownership and operation which were constitutionally guaranteed and thus blocked any legal claim anyone would seriously pursue.

Some of the papers produced by the council as position papers when certain challenges emerged during the Abacha regime should be made available to the House Committee to throw more light on certain provisions in the new law which may be difficult to support or if passed, enforced. These position papers are:
(a) The Newspaper Decree of 1943 which established the newspaper registration board. It provided for punishment for non-registration and failure to renew registration.
(b) The Newspapers (Proscription and Prohibition from Circulation) Decree 48 of 1993. It proscribed newspapers that published what government found distasteful.
(c) The National Mass Media Commission in the 1995 Draft Constitution. It provided for a commission that would coordinate, promote and regulate the existence of newspapers, magazines and publications generally as well as radio and television stations in the country.

It would liaise with, monitor and assist proprietors of radio, television and publications in the dissemination of lawful information. It would coordinate the activities of all professional bodies of the mass media. It would protect Nigerians against intrusion and unwarranted enquiries into the private life of any person without his permission.

It would deal with such other matters affecting the mass media including the code of conduct of mass media practitioners, professional and ethical standards as the president would from time to time direct or the National Assembly would by as act prescribe.

(d) The Threat to Establish a Press Court. The press court was not established because of intervention and case I made to Abacha personally. We agreed to strengthen the press council. When the results he expected were not reflected in the draft amendment to the 1992 NPC Act, he retained the National Mass Media Commission among the Federal Executive Bodies provided for under section 154 of the 1995 Draft Constitution.

Media owners were to meet the general on June 8, 1998 when his death was announced. The Abdusaalam administration set up a committee to review the constitution and what emerged as the 1999 constitution was the updating of the 1979 constitution. The National Mass Media Commission was removed from the list of Federal Executive bodies.

5. Press Councils World Wide. This is the fifth chapter of the Nigerian Press Council publication. It was written by Tony Momoh. It documents the history of the print media and attempts since the 16th century for its control. The British model on which many of the world’s press councils are based is discussed in detail.

There is no doubt that, as elsewhere, the law-makers in Britain were concerned about complaints against media “intrusion into the private lives of individuals…” The law-makers gave the press 18 months within which to demonstrate that ‘non-statutory regulation can be made to work effectively”. In 1999 the British Press set up the Press Complainants Commission, whose functions included the handling of complaints arising under the industry’s code of practice “speedily and fairly”.

This seems to be what the Nigerians media has done through the establishment of the office of Ombudsman who is expected to look with speed into complainants the public have against the press. There is specific undertaking that the outcome of adjudications would be published in full by the medium affected.

Tony Momoh’s discussion of press councils covers the whole world. Some councils are initiated by media owners, some by governments; and others by both parties cooperating to establish a council whose code would be binding on media operatives. Every country with a press council, why it established it and to what and, is detailed in the chapter on Momoh’s Press Councils World-wide – A Comparative Study. To end this part of the presentation, the following material, among others, should be made available to the House Committee:

*Nigerian Mass Media and National Crises edited by Ralph Akinfeleye, Godwin Omole and Ojang Omang;

*Nigerian Media Laws (1903-1999) and Ethics by Tony Momoh; *History of the Nigerian Press, published by the NPC; *Code of Ethics for Nigerian Journalists; *Press Councils  and Similar Bodies in Africa; *Ethics in Nigerian Journalism; *Position Papers by the NPC on listed topics to do with media laws and control attempts; *Agreement Reached between Government and the Media on Amendment to the Nigerian Press Council Act as amended in 1999.

Part  Two:  Constitutional provisions: The supreme law of every country is its constitution. Nothing done outside the constitution can be said to accord with the rule of law. Section 14 of the Constitution makes it clear that sovereignty belongs to the people of Nigeria from whom  government through the Constitution derives all its powers.

The operative Constitution which came into effect in 1999 is therefore no more and no less than a documentation of delegated powers.  No one may therefore do anything not specifically listed in the Constitution.  It is that Constitution that we must look at when we decide to make laws affecting the press.

In chapter two of the Constitution which stipulates the duties that organs of government must perform, the media is asked to hold government accountable on behalf of the people – section 22. This role cannot be denied through legislation. In fact the Constitution provides for strengthening the role of monitoring, not weakening it.

This is clear from Item 60(a) of the Exclusive Legislative List which provides for the establishment and regulation of authorities for the federation or any part thereof “to promote and enforce the observance of the Fundamental Objectives and Directive Principles” contained in the Constitution.

If law can be made only to promote and enforce the performance of the duties imposed in chapter two and which those who perform legislative, judicial and executive powers must conform to and observe, and the media is told to monitor the performance of the duties, then the National Assembly’s power to make law can only be in the direction of strengthening the media’s capability to monitor governance, not weaken it. So while the passing of a Freedom of Information Bill will strengthen access to information of public interest, any law restricting such access will weaken the capacity to monitor.

The Constitution also provides for freedom of expression and the establishment, ownership and operation of the media. The only limitation on media ownership is what the National Assembly can do in setting guidelines and conditions for operating radio and television stations.

The limitation on freedom of expression, which also affects the right to exercise such freedom through the ownership of a medium – sec 39(2) – is settled under section 45 which validates any law that is reasonably justifiable in a democratic society “in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom of other persons.”

The simple deduction to be made from sections 22 (asking the media to monitor governance on behalf of the people), and section 39(2) which guarantees ownership of a medium (here newspapers and magazines without restriction; and radio and television with conditions) is that those who own media must ensure that they monitor governance. And this monitoring must accord with ethics of the profession.

So, if there are complaints about the monitoring, what can be done?  Some argue that the laws of the land validated by section 45 of the Constitution are enough. Others say moderating the performance through ensuring that professional ethics are enforced should not be left to only the monitors.  It is with the different views held by different people that we now look at the bill being proposed.

Part three : The bill being proposed: The letter  from the House Committee on     Information invited stakeholders to the public hearing on a bill for “An Act To Provide for the Repeal of the Nigerian Press Council Act, 1992 and to Establish The Nigerian Press and Practice of Journalism Council, to Promote High Professional Standards For the Nigerian Press and Deal with Complaints Emanating from Members of the Public about the Conduct of Journalism and Media Houses in their Professional Capacity or Complaints Emanating from the Press about the Conduct of Persons, Organisations or Institutions of Government Towards the Press and for Matters Connected Therein 2009.”

The bill has 79 sections in 12 parts.   Part one establishes the Nigerian Press and Practice of Journalism Council  (NPPJC);  part two lists the powers of the council; part three, ownership of the media; part four, freedom of journalists to practise their profession; part five, qualifications to practise as a journalist; part six, appointment as editor; part seven, conditions of service;  part eight, responsibilities of journalists and the media;  part nine, disciplinary process and procedure; part 10, offences and penalties; part 11, miscellaneous; and part 12, interpretation. We are not at this stage concerned with the fine points always reflected in laws. If we were, we would be attending to issues that may not scale the hurdle of constitutionality. We will only look generally at the parts and assess them in the light of the detailed material referred to in Part two of this presentation.

Part 1: (sections 1 -7) establishes the Nigerian Press and Practice of Journalism Council (NPPJC); provides for its composition which is by and large the same composition as the repealed Nigerian Press Council Act of 1992. The duties of the council show that it is also empowered to register newspapers.

The executive secretary of the council will be appointed by the president on the recommendation of the minister of information, and he will be the chief executive of the council. When the office of the secretary was discussed during negotiations for amendment of the Act, it was agreed that the executive secretary would be appointed by the Council.

The draft bill reflecting this agreement and many others was supposed to have been sent to the National Assembly since 1999. And it was the understanding of the media that until the amendments to the 1999 amended Nigerian Press Council which provided for documentation or registration of newspapers and magazines, the Nigerian Press Organisation (NPAN, NGE and NUJ) would not send nominees to the press council.  Other sections of this part show clearly that the body, like others preceding it,  is a parastatal of government.

Part 2 ( sections 8-19) deals with the powers of the council. The autonomy of the council is guaranteed (sec 8) and the code it will use will be provided by the NUJ which can amend the code from time to time (sec 9).  But by section 9(3), the code to be binding for use by the council will be the one it approves. In other words, the NUJ code will be only a proposal to the council. Complaints can be laid before the council but this will be only on appeal. It means that the council as proposed is not a first port of call in laying complaints.

There is a lower body, the Media Practitioners Complaints Commission – section 16(c) – from which appeals will flow. These bodies will be 37 in number (see section 52 in part 9 which deals with Disciplinary Process and Procedure), each operating in each state of the federation and the federal capital. They will handle complaints “of professional and or ethical misconduct of journalists in the respective states.”

Under section 17, provision is made for publication of apology where a medium is found guilty, but failure to abide by the ruling of the commission will be treated as an offence punishable with a fine of the medium or the journalist and a jail term and suspension from practice where the failure to abide by the ruling of the commission persists – section  17(3) & (4). Section 18 deals with the qualifications for registration of journalists. In section 19, the executive secretary will not only maintain a register of accredited journalists, he must also compile a register of News Agents!
Part 3 (sections 20-22)  deals with the Ownership of the Press and Media. The part rehashed the constitutional guarantee for ownership of media and conditions  for operating radio and television stations.

Part 4 (sections 23-25) deals with freedom of journalists to practise their profession. Section 23 purports to further guarantee the freedom of the press under section 39. There is no such guarantee. Section 39 guarantees the right to freedom of expression and also guarantees ownership of a medium to do so. Section 24 forbids arbitrary arrest, detention or prosecution of a journalist for publishing views and opinions; and section 25 also forbids arbitrary closure of radio or television stations outside due process.

Part 5 (sections 26-32) deals with qualification to practise journalism. While section 26(a) provides that you cannot practise as a journalist unless, among others, you have passed a qualifying examination approved by the Council, you must by section 26(e) pass the prescribed “professional examination of the Nigeria Union of Journalists.” Is it this NUJ professional examination that the council must approve or another qualifying examination?

The matter becomes really complicated when sec 27 says that Council would establish a National Examination and Accreditation Board “to conduct examination for would-be journalists or graduates of mass communication in Nigeria.” And the examination would be done at the Nigerian Institute of Journalism! What is the need to read mass communication if the graduates would be subjected, perhaps to the exclusion of graduates in other fields, to do an examination at the NIJ that does not award degrees! Section 27(2) lists members of the proposed Board who are drawn from media bodies, but there is no place for the association of journalism and masscom teachers who man the about 60 institutions in Nigeria today that offer communication studies!

There is even a one-year programme that graduates of journalism must run at the NIJ before they practise – section 27(4). Section 28(1) deals with approved qualifications and anchors them on section 20 of the bill which deals with ownership of a medium! The qualifications approved by the council and published from time to time in the gazette will be the only proof of recognition of courses.

This provision is subject to subsection 1 of section 28. And there is no such subsection 1! Another point to note here is the place and relevance of the National Universities Commission and the National Board for Technical Education, both established by law and empowered to approve courses of study in Nigerian institutions! The council can also withdraw approvals it has given and send copies of such decisions to the minister. Which implies that the minister (presumably of information) is the overriding authority on qualification for study in institutions in Nigeria – section 28(5)(b).

Courses and examinations
Section 29 demands information from approved institutions to inform the council of what they do, and it can send teams to verify claims the institutions make, even sit at courses and examinations to assess their adequacy or otherwise – section 29(2).  Section 30 deals with certificate of experience which would be given after acquiring practical experience on the job. Where a certificate of  experience is denied and the person affected appeals to the council, the council can issue such a certificate – section 30 (4)(b).  Incidentally section 75 of the bill which deals with registration of newspapers and magazines ties such registration to meeting the conditions for certification provided for in section 30! Sec 31 provides for the council publishing the name of any journalist who had been reprimanded.
Part 6 (sections 33-34) provides for the appointment of editors and the conditions that must be met.

Part 7 (sections 35-40) provides for conditions of service for journalists and fixes the minimum pay they must earn. The pay increases with the spread of coverage in Nigeria. Although there is no suggestion as to where any journalist’s salary may start, the section provides that a minimum of 20 per cent above what workers in government parastatals and private companies earn must be paid.

It even contradicts itself by providing for negotiation between the media owners and the NUJ for the purpose of deciding the package which must include insurance and pension. It is an offence under the bill to fail to pay salaries and allowances negotiated or fixed. The NUJ would have to report such failures to the council for appropriate action. It is unfortunate that media workers are poorly paid and that the pay is irregular but the National Assembly has no power to make law for any specific group of people and enforce conditions of service on those they work for. Our employment and labour laws cannot be overridden by a proposal such as this.

The right to own, establish and operate a medium under section 39(2) of the Constitution is subject to the laws permissible in a democracy and these are provided for under section 45. The law of contract provides for a relationship between contracting parties.

Even negotiated conditions of service by industry groups do not bind employers in the industry unless they decide that they will be bound. Newspaper publishing is a business, like any other, and is there to meet its commitments from its earnings. This contribution should not be seen to  undermine the effort those behind this provision have made to ensure that journalists are better paid. But the law must be explained.

The council cannot be the supervisor of the industry for the purpose of monitoring conditions of service between a worker and his employer.

Part 8 (sections 41-51) deals with Responsibilities of Journalists and the Media. Section 41 draws attention to the monitoring role of the media under chapter 2 of the Constitution and asks for fairness, accuracy and balance in the monitoring of governance. So in my view, sections 42, 43, 45 (respect for privacy of people); 47 (gratification for which a fine or and jail term are imposed), 48 (emphasizing the need for unity in Nigeria); 49 (identification of minors at trials); and 50 (sensitivity to national security issues) are providing a code of conduct for journalists which is supposed to have been already provided by the NUJ. Section 44 creates an offence of professional misconduct which will be investigated and punished by the commission, supposedly in the state where the offence occurred. Section 51 does not make sense.

It provides for punishing infractions of sections 15-21 which deal with issues in parts two and three of the bill. Perhaps what is being punished are infringements of the code of conduct as set out in this part 8. But there is also some problem here. Report of such infringements would be sent to the Nigerian Press Council which has been repealed by this law; and the one to do the reporting is the NUJ! So the NUJ is to cope with two codes, the one it will hand over to the council and the one the law documents in part 8.

Part 9 (sections 52-64) deals with Disciplinary Process and Procedure.
Section 37 establishes Media Practitioners Complaints Commissions, that is in each state of the Federation and  Abuja. All complaints alleging “professional and ethical misconduct” will be handled by the commission in the state where the action takes place.

There will be nine members in each state commission to be appointed by a national executive committee of the Council which seems to be mentioned for the first time in the bill. Section 54 provides for the membership of the commission, and they include members of the media bodies and the legal profession. Section 55 details the powers of the commission.

They include the power to summon people to give evidence and can deal with any matter in the absence of those summoned (sec 55,iii). Section 56 deals with notices to be given for presentation of cases and the period within which a matter would be resolved by the commission. Under section 59, the commission can reprimand or suspend the erring journalist from practice for a maximum of 12 months. Section 60 provides for appeal from the state commission to the national commission, and the person affected has 14 days to do so.

There is room for a further appeal to the Court of Appeal – section 61. Section 62 provides for the opening of a book which will contain the names of those found guilty of professional misconduct, a term which is not defined by section 79, the interpretation section. Section 64 provides for actions simultaneously in the commission and the regular courts.

This shows that a choice to go to the council which ordinarily would bar action in a court of law does not apply in this bill. Where the findings of the regular court are in conflict with the findings of the commission, the findings of the regular court will prevail and the commission will enforce them – section 64(4).

Part 10 (sections 65-68) provide for offences under the act and penalties for professional misconduct  which seem to be different from the provision under section 59 where the commission can suspend an erring journalist for 12 months. Offences also include giving wrong information for registration, presenting yourself as a journalist when you are not, and refusal to register a newspaper magazine or to make annual returns.

Part 11 (sections 69-78), miscellaneous, provides in section 69 that certain offices be reserved for registered and practicing journalists. There is some problem here. A minister or commissioner is supposed to be a card-carrying member of a party before he or she can be appointed. Is it professional for a practising journalist who may be considered for appointment as a minister or commissioner to be a politician?

Other offices reserved for journalists  by the bill are those of the chief press secretaries to the president, vice president, president of the Senate and speaker of the House et al.

Section 70 wants 25 per cent of all board appointments in media houses to be reserved for registered journalists, Section 71 says no unlicensed print or electronic medium can operate in this country.

This means that newspapers and magazines must now be licensed. Breach of this provision attracts N500,000 fine or imprisonment for one year. Section 72 provides for funding of the Council. Section 74 provides for application for documentation of newspapers and magazines and details information required. Section 75 seems to make documentation dependent on section 30 which deals with the certification of journalists.
Part 12 (section 79) is the interpretation section

Part four: Brief comments on the bill: The bill is more than a proposal for a press council. It combines all the provisions of all laws made in the past to regulate information dissemination. These include provisions of the Newspaper Ordinance of 1917, the various amendments to it and especially the one in 1964 that made publication of false news a criminal offence.

It also brings back the provisions of the Newspaper Decree of 1993 which were incorporated into the NPC amended Act of 1999 and which has not taken off because the media asked for and got a commitment from government  that amendments agreed by the parties would be effected by the National Assembly before the press council would be inaugurated. Since the return to civilian rule, that amendment has not been attended to and the press council has not functioned.

Recently, a press council was inaugurated without even the courtesy of informing Alhaji Alade Odunewu, one of the living legends of the media today, that he was being removed as chairman of the council. That council is now being headed by a politician, without regard for the law that established it. In the 1995 Draft Constitution which did not come into effect, there was a provision for a press commission. That commission is now back and is replicated in every state of the federation.

It is the press court that Abacha himself was persuaded not to establish! The code of conduct of the profession is undermined by the provisions in part 8 which deal with the responsibilities of journalists. The incursions into endorsing programmes of training for journalists outside the powers of the different national bodies will cause avoidable clashes and expenses.

Telling media owners how to run their businesses outside the provisions of the Companies and Allied Matters Act seems to me to be unnecessary. And it is also not acceptable that the council, not being an employer of labour, wants to supervise the minimum wages it has fixed and how employers meet commitments under the provisions!
Part five: Trends in media law : Because of the reduction of the whole world to the so-called global village, there is no hiding place for any actions on the part of those who govern that may tend to reduce the exercise of the freedoms that have now been entrenched in various documents as inalienable rights of man. Restrictive laws are, therefore, becoming not only unpopular but also unenforceable.

The bill as it is, if it becomes law, cannot be enforced. The first casualty will be the Council because media bodies are unlikely to accept to be part of the Council. The first part of this presentation shows clearly that media bodies have been suspicious of any legislation to bridle the press. Looking at the Constitution strictly, the National Assembly has power to strengthen institutions that will promote access to information of public interest so that the monitoring role of the media will be enhanced.

This is where an urgent preoccupation of the lawmakers should be the retrieval of the seemingly abandoned Freedom of Information Bill. According to UNESCO, in 1990, only 13 countries had adopted national right to information laws whereas today, at the last count, about 80 countries have done so and many more are working to have such laws. They are now being regarded as part of the ways to measure the presence and operation of democracy in any country that claims to be democratic.

Conclusion: In making this presentation, I have acted on behalf of: *government by pointing to what has been done in the past and the many road blocks we have had to try to clear; *the National Assembly because as our lawmakers, it is important that you have all the facts so that laws made will be those that are enlightened and enforceable; *the Nigerian Press Council as reminder that they have all the material needed to provide guidance to the committee at this public hearing; * the media owners because they are business men and they may well have chosen to set up petrol stations or grocery stores instead of investing in the media; *the media practitioners because they are a class on their own, being specifically called upon by the people of Nigeria to monitor for them those who are assigned roles to perform on behalf of the people.

They have an obligation to be professional in doing that monitoring.  The question still remains that whatever monitoring structures are put in place will be those that will help grow democracy, not undermine it.  In this light, the NPAN has set up the Office of Ombudsman and has requested that those who have complaints against media performance should file reports to the ombudsman who is a retired judge of the Court of Appeal.

The media have promised to be bound by  decisions of the Ombudsman.  It is doubtful that they would be willing to cooperate in the operation of this bill, if it becomes law.


Disclaimer

Comments expressed here do not reflect the opinions of vanguard newspapers or any employee thereof.