South Sudan: Media Authority Bill
ARTICLE 19
26 Jul 2012
Executive summary:
In June 2012, ARTICLE 19 analysed the Draft of the Media Authority Bill 2012 of South Sudan (Bill No. 52) that is currently pending an approval by the Council of Ministers and the Legislative Assembly of South Sudan. The Draft Media Authority Bill 2012 is a part of media reform legislation also comprising of the Right to Information Bill and the Southern Sudan Broadcasting Corporation Bill.
ARTICLE 19 welcomes the initiative of the Government of South Sudan to create a legal environment and regulatory framework supportive of freedom of expression. In general, the Draft Bill shows that the drafters intended to pay respect to international standards on freedom of expression, and in several parts (especially the provisions on procedural rules) the Bill complies with the respective international standards on freedom of expression.
Nonetheless, ARTICLE 19 believes that the Draft Media Authority Bill requires several improvements in order to create a safe legal environment for the media in the country. In particular, the analysis relies on international standards for freedom of expression and broadcasting that stipulate that the media regulatory body should be independent from government, should have precisely circumscribed powers, and must take measures prescribed by law. Legal remedy should be secured against all decisions of the authority.
In view of the international standards, ARTICLE 19 points out that the Media Authority, as proposed by the Draft Media Authority Bill, will not be independent from the government for a number of reasons. Firstly, its members would be appointed by the joint action of the Minister for Information and Broadcasting, the Council of Ministers, and the President, and can be removed by the President, on the recommendation of the Minister.
ARTICLE 19 notes that although apparently more participants contribute to the process, they are all from parts of the government. Furthermore, the Media Authority budget shall depend on government approval; it may accept grants from the government, thereby opening a door for undue influence. The Draft Media Authority Bill also gives the Ministry and governmental entities the right to initiate legal procedures by the Authority, which invites politically motivated procedures against media providers, and means an interference with the Authority’s independence.
Moreover, ARTICLE 19 recommends that the Draft Media Authority Bill must clarify the limits of the powers of the Media Authority. The scope of rules that the Media Authority may enforce through investigation and sanctioning, proposed in the Draft Bill, is too vague at present. The role and the powers of the committees within the Authority, and how their members get appointed, also need further clarification and a declaration that they cannot decide on behalf of the Authority. More precise definition of the sanction “suspension of service” is recommended. We suggest making it clear that internet content providers need not register.
ARTICLE 19 suggests that certain powers of the Authority should be limited. We are deeply concerned because of the Authority’s power in the field of content regulation. The Authority should not participate in defining content rules. Investigative rights should only extend to holding meetings and requesting documents. Its powers should not extend to the printed press in any way.
We were especially concerned about the two appeal bodies set out in the Bill. We consider the appeal mechanism substantially flawed and recommend abolishing both kinds of appeal bodies, while strongly urging that a full and independent court review of all decisions is secured. None of the appeal bodies would be able to fulfil the task of providing an independent and efficient review, primarily because of the appointment mechanism, and secondly because of the restrictive rules that would limit their power to accept and examine complaints. Court review should be explicitly made possible, without restrictions on the grounds of complaints, or the tools of evidence to be applied in the procedure.
Although ARTICLE 19 finds the provisions on frequency planning and licensing rules largely consistent with the international standards for freedom of expression, we suggest inserting certain guarantees to ensure that the rights of applicants or licensees are not violated. Firstly, the Bill should declare that the Authority may exercise its right to define specific licence conditions only prior to announcing the tender. The Bill should explicitly declare the obligation of the Authority to only decide tenders on the basis of the criteria that were defined either in the law or in the announcement of the tender. Amendment of the licence conditions at a later point in the tendering phase or during the licence period should be explicitly excluded, unless it is mutually agreed by the authority and the licensee.
Summary of recommendations:
•Although ARTICLE 19 welcomes and appreciates most of the Principles of the Draft Bill, we recommend their revision. Those principles that are retained should be given full effect through the provisions of the Bill.
•No registration should be required for any internet outlets.
•The Board members of the Media Authority should be elected by the Parliament. A qualified majority and the agreement of more political parties than the governing parties should be required for their election.
•The Draft Bill should provide an opportunity for civil organisations, and organisations of journalists and of broadcasters to participate in the nomination process of the Board Members.
•Guarantees to prevent political and economic influences should be added by extending the prohibition of holding a political or economic position to several years before and after a Board membership.
•The Draft Bill should stipulate that only individuals who have relevant expertise and/or experience should be eligible for appointment as Board members. The membership overall should be required to be reasonably representative of society as a whole, including minorities.
•The rules about removal of Board members should be further elaborated. In particular, the Draft Bill should stipulate that dismissal from the mandate should be permitted for those members who have been convicted, after due process in accordance with internationally accepted legal principles, of a violent crime, and/or a crime of dishonesty, unless five years have passed since the sentence was discharged. The Bill should also explicitly stipulate that the dismissal of members prior to the completion of their mandate should be subject to judicial review.
•The role of the committees of the Media Authority should be defined without ambiguity, and pay respect to the principles governing the consistency of a media supervisory body: transparency, accountability and independence.
•The Authority or its committees shall only act on the basis of laws rather than on codes of ethics and guidelines, which are tools of the self-regulation regime.
•Investigative rights of the Media Authority should be limited to the examination of documents and holding meetings. These should be set out narrowly, with respect to freedom of expression and the integrity and privacy of journalists and media outlets.
•The Draft Bill should clarify in which cases the Media Authority may bring an action before court, and in which cases it may start an administrative procedure itself. The two sets of cases should not overlap.
•The powers of the Media Authority in respect of enforcement rules should be defined with more precision.
•All rules that the Media Authority may implement should be defined clearly in the Bill and be accessible to the public.
•The power to impose a fine should be stated explicitly in the Draft Bill and the conditions should be specifically defined. A limit on fines should be laid down in law, rather than a decision by any authority.
•The powers of the Media Authority with regards to the access to information laws should be defined precisely.
•Passing decisions in the name of the Board of the Media Authority should not be delegated to any group of the Board members or any officers.The scope of the functions that may be delegated (e.g. administrative matters or preparation of decisions) should be defined precisely and the scope of persons who are allowed to receive such a mandate should be defined.
•Collected fines should not be used for the direct operation of the Media Authority, but to subsidise some other field of the media or society instead.
•The government should only be allowed to provide grants to the Media Authority for specific tasks or projects in the public interest.
•All grants and donations should be provided in a transparent manner, and only for specific tasks or projects in the public interest.
•Industry stakeholders should be excluded from giving grants or donations to the Authority.
•The budget of the Authority should be approved by the National Assembly rather than the government as should be the case with other budget parts of the central administration in South Sudan.
•Licence conditions should be defined in the announcement of the tender, and the Media Authority should decide on the basis of those criteria.
•The Bill should explicitly state that all unilateral changes to the licence conditions should only be applicable in the following licence period.
•The Draft Bill should stipulate that the Programme Code is also developed in close cooperation with the broadcasters themselves and in consultation with the general public, and is reviewed regularly.
•The printed press should not be overseen by the Authority. The Advertisement Code should only apply to broadcast media.
•The upper limit for the suspension of a licence should be defined in the Bill.
•The Media Appeals Board should be abolished.
•The Authority’s decisions should be reviewed either by an independent forum of second instance or directly by the court.
•In case an independent appeals body is created, it should be independent from the government on the one hand, and from those who pass the first instance decisions on the other.
•All administrative decisions, even second instance decisions, should be allowed to have a full court review, without restrictions on the grounds of the review or the tools of evidence.