Folks

Sometime ago I manage to have read this a report from
the IPI on the The Gambia Media Commission Bill. Since
this bill is about to be finalised, I thought it is
best that we read this piece of dosier on Jammeh'Media
Commission.

God Save the Gambia from Jammeh's tyranny.

Enjoy reading!

Sanusi Owens


International Press Institute
Report on Draft Gambian National Media Commission
Bill, 1999
___________________________________________________________________________

A. Introduction
The International Press Institute (IPI), the global
network of editors and media
executives, has been asked to examine the proposed
National Media Commission
Bill, 1999 ("the proposed legislation" or "NMCB,
1999") on the basis of
international standards of press freedom and freedom
of expression. In providing
this report, IPI has examined a number of Gambia’s
laws touching upon press
freedom and freedom of expression and some of the
country’s international
obligations on this subject.
For the purposes of the report, sections of the
proposed legislation have been
reproduced in italics.
B. Documents Examined
a) The National Media Commission Bill 1999.
b) African [Banjul] Charter on Human and People’s
Rights.
c) International Covenant on Civil and Political
Rights.
d) United Nations Universal Declaration of Human
Rights.
C. Purpose of the Report
The purpose of the present report is to provide the
perspective of an
international press freedom organisation on the
proposed legislation, analyse
the definitions and procedures, clarify problems with
the legislation and put
forward amendments and recommendations to the text.
D. Overview of the Report
The proposed NMCB, 1999 establishes a National Media
Commission ("the
Commission") whose main purpose is to inquire into
complaints made against media
practitioners. For this purpose, the Commission has
been given a number of
powers, including the ability to summon witnesses and
discontinue an inquiry.
Witnesses appearing before the Commission are provided
with immunity concerning
the evidence given. In addition, the Commission can
order a media practitioner
or media organisation to apologise for a complaint
and, where appropriate, order
that media practitioners publish or broadcast the
apology. In order to give
greater credence to the upheld complaint, the
Commission may publish the name of
a media organisation or practitioner that has been
reprimanded or penalised.
There is a general penalty provision for
contraventions of the NMCB, 1999 where
no specific penalties have been provided for.
E. Analysis of the Proposed Legislation
1. Comments on the Scope of the NMCB, 1999
According to the section entitled "Objects and
Reasons", the purpose of the
NMCB, 1999 is to establish a Commission whose
"functions are clearly spelt out,
chief among which is that of inquiring into complaints
made against media
practitioners".
Under "Interpretation" (section 2, NMCB, 1999) the
words "media", "media
organisation" and "media practitioner" have been
defined in the following
manner:
i) "media" means all forms of mass communication
ii) "media organisation" includes a media house,
association, club or company
engaged in a business of mass communication
iii) "media practitioner" means a person engaged in
the writing, editing or
transmitting of news and information to the public and
includes journalists and
the proprietor, publisher, editor and manager of a
newspaper or broadcast
station
Examining both the statement in the "Objects and
Reasons" section and the above
definitions, it is clear that the intent of the
Gambian government is to
regulate all forms of media by means of the
Commission.
IPI strongly believes that the decision to bundle all
forms of media into one
single sector is fundamentally flawed and will be
detrimental to Gambia’s
printed and electronic media. In particular, IPI feels
that the decision is
arbitrary in its nature and has been made without
proper regard for the
differences that exist between these two branches of
the media.
Although IPI does not intend to provide a substantial
treatment of the
differences between these two branches in this current
report, the following is
a brief outline of some of the reasons for separating
the printed media from
that of the electronic.
Perhaps the most important distinction lies in the
complexity of the electronic
media when compared to the printed media. The
importance of the radio and
television, and the belief that they have great impact
and reach a wider
audience has meant that these media are regulated
under specific broadcasting
laws. Such laws cover all elements of the broadcasting
process, including: the
role of public service broadcasters, the duties of
private television, tendering
processes, licenses and advertising. Within these
laws, there are arrangements
for the way in which television and radio handles
complaints (these may differ
in procedure, according to whether they are public
service or private
broadcasters).
In addition, the nature of the electronic medium,
whether radio or television,
requires different guidelines to those of the printed
media. Questions
concerning subliminal messages, advertising, gender
stereotypes, violence,
sexual content, watershed broadcast times, although
some are applicable to the
printed media, require regulations that take into
account the difference of the
medium. Furthermore, the potential for manipulation is
greater in the field of
the electronic media and this factor needs to be taken
into consideration when
devising regulatory bodies. Finally, the difference in
procedures between the
two branches necessitates a different approach and
expertise when assessing
complaints.
With the above in mind, IPI proposes that the printed
media and the electronic
media should be separated from one another. It also
further argues that matters
concerning the electronic media should be dealt with
as an addendum to the
relevant broadcasting legislation and not in the
proposed legislation.
Therefore, in light of this specific recommendation,
IPI proposes only to
examine the NMCB, 1999 from the perspective of the
printed media.
2. General Recommendation on the NMCB, 1999
It is proposed that the National Commission (section
3, NMCB, 1999) should be
legislated under the laws of Gambia. In the opinion of
IPI, the decision to
regulate the National Commission by law will have an
oppressive and detrimental
effect on press freedom in Gambia.
In any society, the media play a vital role of
scrutinising and reviewing the
activities of the government. Such activity informs
the members of society and
enables them to appreciate the work that is being
undertaken in their name. The
suppression of this essential role would create a
rigid society in which debate
on issues is replaced by the single voice of the
government. Furthermore, IPI
would remind the Gambian government that, in
recognition of the essential work
carried out by the media profession, the United
Nations has enshrined the right
to "seek, receive and impart information" in article
19 of the Universal
Declaration of Human Rights.
With regard to the NMBC, 1999, IPI fears that the
regulation in law of the
Commission would undermine the pivotal function of the
printed press and leave
them prone to political influence.
In consequence of these principles, IPI believes that
the best way forward is to
adopt the model of self-regulation. The adoption of
this model would allow the
printed media to create their own regulatory body,
thus making the proposition
more attractive to newspapers that fear the
intervention of the government. In
addition, an independent, self-regulating body would
be more likely to receive
cooperation from the printed press on the basis that
it no longer had the
potential involvement of the government.
IPI therefore recommends that the government of Gambia
should allow the printed
media to adopt its own independent self-regulatory
authority. All further
comments on the NMCB, 1999 should be seen in this
light.
3. The Composition of the National Commission
Section 4 (1) of the NMCB, 1999 states that the
Commission should be composed of
the following nine members:
" a) a chairperson who shall be a professional media
practitioner not in the
employment of the Government, who shall be appointed
by the President;
b) the Permanent Secretary of the Department
responsible for information or his
nominee;
c) one representative of the Gambia Press Union;
d) one representative of the Association of
Broadcasters;
e) one representative of the Gambia Teachers Union;
f) one representative of the Supreme Islamic Council;
g) one representative of the Gambia Christian Council;

h) one representative of the Gambia Bar Association;
and
i) one representative of the Women’s bureau."
In addition, section 4(2) and (3) state that members
of the National Commission
shall elect a vice-chairperson from their ranks and,
excluding the Permanent
Secretary, each member shall be appointed for three
years with the opportunity
of being reappointed for a second term.
i) Appointments to the National Committee
IPI believes that the appointments will have an impact
upon the independence and
credibility of the National Commission.
First, the appointment of the chairperson (section 4
(1) (a)). Although the
president must choose a media practitioner who is not
employed by the
government, this does not prevent the president from
choosing an individual who
is closely connected to the president or who is a
member of the president’s
political party. As a result, there is a likelihood
that the perceived
independence of the National Commission will be
impaired.
Second, the fact that the Permanent Secretary for the
Department responsible for
Information or his nominee sits on the national
Committee means that the
government has a permanent representative. Although
the section appears to call
for the appointment of a civil servant, IPI views this
as a "political"
appointment. This is because individuals from the
civil service are dependent on
the government for their employment and duties and, as
a result, may be subject
to government pressure. A fact that, once again,
jeopardises the independence of
the National Committee.
IPI recommends that the power of appointment should be
removed from the
president and that neither the Permanent Secretary nor
their nominee should be
empowered to sit on the National Commission.
ii) Composition of the National Committee
Although IPI broadly welcomes the variety of groups
represented on the
Commission, it does feel that, as a whole, many of the
positions have been given
to recognised institutions within Gambia. As a result,
the composition is
unrepresentative of Gambia as a whole.
A particular problem is the overemphasis on religious
representation. With
members from both the Christian and Islamic faiths, it
would appear that the
Commission might well attempt to reinforce vague moral
and religious notions
rather than strict breaches of a code of practice.
An additional problem is the fact that media
representation on the commission
comes from two recognised organisations; namely, the
Association of Broadcasters
and the Gambia Press Union. Regarding these
appointments, IPI would like to see
members of the media drawn from a far wider base than
at present. This would be
in recognition that there are other journalists and
editors, perhaps in other
organisations, who may have a role to play in the
Commission. Concerning lay
membership of the Commission, IPI would like to see
representation from the one
group not mentioned in section 4 (1), the public.
In relation to the representative from the Gambia Bar
Association, IPI feels
that problems would arise if the appointment was made
in order to confer on the
Commission the status of a court of law. According to
IPI’s view, the attempt to
give the Commission such a status would be entirely
inappropriate.
iii) Competence of the Commission
The reason for such a belief firmly rests on the
notion that the Commission is
unsuited to carry out the role of a court and is
totally lacking in competence
for this purpose. Merely because a legal
representative sits on the Commission
does not mean that the board may act in a judicial
capacity. A court needs
trained members of the judiciary who have experience
in hearing evidence,
listening to legal argument and rendering judgement.
All these elements are
missing from the Commission.
According to article 7 (b) of the African [Banjul]
Charter on Human and People’s
Rights:
"1. Every individual shall have the right to have his
cause heard. This
comprises … (b) the right to be presumed innocent
until proven guilty by a
competent court or tribunal".
In the above, IPI would emphasise the phrase
"competent" which the Commission
appears to lack.
iv) Impartiality of the Commission
Another feature which would impede the Commission’s
ability to act is the
perceived bias of the body in its current form. As
already stated, the
government has an opportunity to appoint
representatives to the Commission who
are directly or indirectly connected to the
government. Due to this there is
considerable doubt that the Commission would be able
to deal with complaints in
a fair and impartial manner.
IPI would remind the Gambian government of its
commitment to the United Nations
Universal Declaration of Human Rights which states
under article 10:
"Everyone is entitled in full equality to a fair and
public hearing by an
independent and impartial tribunal."
In light of this express commitment, it would appear
that members of the media
would be denied an impartial hearing before the
Commission.
v) Equal Treatment before the Law
Unfortunately, the time constraints on the production
of this report have
prevented IPI from fully investigating the
international obligations to which
the Gambia has committed itself. Therefore, although
there is evidence that the
government has sought to reserve elements of the
International Covenant on Civil
and Political Rights, it would appear that Gambia is
not yet a signatory.
However, due to Gambia’s involvement in the process of
becoming a signatory, IPI
argues that it should take heed of the obligations
contained therein.
According to article 14 of the above mentioned
Covenant:
"All persons shall be equal before the courts and
tribunals."
The creation of the Commission to hear complaints
relating to the media, and the
attendant powers to fine and imprison journalists,
would appear to imply that a
special forum has been created for the media. IPI
believes that, when taking
into consideration the concerns relating to competence
and impartiality, this
means that journalists are being treated unequally
before the law.
In view of the above, IPI would invite the Gambian
government to radically alter
the composition of the Commission and divest it of all
quasi-judicial powers.
4. Functions of the National Commission
According to NMCB, 1999, section 5, "the Commission
shall –
(a) ensure the impartiality, professionalism and
independence of the media;
The phrases "impartiality", "professionalism" and
"independence", used in the
above subsection, are rendered almost meaningless when
viewed in the context of
the present legislation. These phrases would appear to
be too ambiguous for the
purposes of a law and the failure to include them in
the definitions section
only increases the uncertainty over their true
meaning. Due to this, IPI fears
that they may be misconstrued or manipulated for the
purposes of controlling the
flow of information and impeding press freedom.
IPI recommends that these phrases are deleted.
(b) maintain a register of media practitioners;
Concerning the register of media practitioners, the
decision to include this
power is against international practices in connection
with the media. As
already stated, the media plays an essential role
within society and any attempt
to prevent the work of the media has serious
consequences. Indeed, the free flow
of information is to be cherished and should not be
subject to arbitrary
control.
The decision to promote a register for all media
practitioners, in IPI’s view,
is nothing more than a governmental attempt to control
the media and ensure that
it adheres to the political will.
IPI is fearful that the creation of a register would
allow the Commission to
refuse to register some journalists and give the
Commission the power to remove
others. When seen from this perspective, the section
gives the government
enormous powers to control journalists and inhibit the
free flow of information.

In addition, IPI would remind the Gambian government
of its commitment under the
African [Banjul] Charter on Human and People’s Rights,
section 10 (2) which
states:
"Subject to the obligation of solidarity provided for
in section 29 no one may
be compelled to join an association".
In seeking to register journalists, the government of
Gambia would appear to be
forcing them to join an association.
IPI would remind the government of its commitment to
international obligations
that guarantee press freedom and urges them to delete
this section.
(c) provide for a code of conduct for media
practitioners, and set standards
with regards to the contents and quality of materials
for publication or
broadcast by the media;
IPI welcomes a code of practice for journalists,
however, this is with the
caveat that any code of practice should be voluntary
and should be drafted by
the journalists themselves. The imposition of a code
of conduct by the
government would have direct consequences for press
freedom in Gambia.
The question of standard setting raises the
possibility that outside groups
would seek to impose their own standards. Indeed, it
is entirely possible that
such standards would be defined in order to inhibit
the media and prevent them
from performing their role within Gambian society.
Concerning the phrase "quality", IPI views this word
as too ambiguous for the
purposes of the proposed legislation.
Therefore, IPI recommends that this section is deleted
and that the Gambian
government invites the journalism profession to draft
its own code of practice.
Furthermore, the phrases relating to standards for the
contents and quality of
materials should be deleted.
(d) promote the establishment and maintenance of the
highest journalistic
standards in the mass media."
The willingness to promote standards is welcomed by
IPI although it is of the
firm opinion that the media should be allowed to
promote these standards free of
interference from the government.
(e) facilitate the registration of newspapers,
journals, radio and television
stations, in accordance with the constitution and
other laws.
As stated above, the registration of media
organisations is a distinct threat to
press freedom. Although it is right and proper that
companies should be
registered for the purposes of company law, the
registration of newspapers,
journals, radio and television stations goes against
international practices on
freedom of the press.
The need to register is another attempt by the Gambian
authorities to control
the media and carries with it the threat of being
removed from the list and thus
prevented from disseminating information.
In addition, IPI would again remind the government of
Gambia of its commitment
under the African [Banjul] Charter on Human and
People’s Rights, section 10 (2)
which states:
"Subject to the obligation of solidarity provided for
in section 29 no one may
be compelled to join an association".
In the opinion of IPI, the compulsion placed upon
media outlets to register,
clearly contradicts this section.
IPI strongly recommends that this section be deleted.
(f) inquire and investigate complaints lodged by
individuals, bodies corporate
and incorporate, and media practitioners regarding the
content of any broadcast,
newspaper, or other information transmitted via the
mass media; and
Although IPI believes it is the role of the Commission
to hear those complaints
brought before it; IPI has distinct concerns that the
Commission may abuse its
powers to "investigate" a complaint.
While it is unclear, it seems possible that the
Commission may be able to use
the offices of the police in order to carry out
investigations into the
behaviour of the media. IPI strongly believes that the
Commission has no remit
to carry out such investigations. This is for the
reason that the body does not
have the experience, the training or the competence to
engage in such
activities. Furthermore, the power to order
investigations would appear to
undermine the role of the police authorities that, by
law, have the power to
carry out investigations where they believe an offence
has been committed.
Regarding the role of a body that has been created to
hear complaints, IPI would
also be worried that there is a distinct conflict of
interest. In most
democracies the role of the judiciary is separated
from that of bodies that
undertake investigations, this is because it is felt
that impartiality would be
lost where the judiciary had a role in carrying out an
investigation while also
being responsible for rendering judgement.
In the present case, this is exactly the role being
assigned to the Commission.
The word "investigate" should either be defined
narrowly or deleted.
(g) ensure and protect the rights and privileges of
media practitioners,
including state owned media practitioners, in the
execution of their
professional duties.
While this appears to be a clear statement that the
Commission will uphold the
rights of the media, IPI is concerned that, on the
basis of the other sections
contained in the proposed legislation, there is a
clear contradiction between
this section and many other sections contained in the
proposed legislation.
Indeed, it would appear that there is no correlation
between the rights
expressed in this section and the onerous duties
imposed in the other sections.
IPI doubts that the Commission would be willing to go
very far in supporting the
rights of the media and might be prepared to jettison
this section in its
attempts to affirm other elements of the proposed
legislation.
5. Meetings
Section 6 (6) states:
The commission may co-opt any person to act as an
advisor at its meeting except
that the co-opted person shall not vote at such a
meeting.
IPI believes that advisors should play no role in the
procedures of the
Commission. The inclusion of advisors touches upon the
impartiality of the
Commission and its decision making process. Indeed,
there are concerns that
advisors may be placed at the disposal of the
Commission in order to manipulate
or distort information placed before the body.
Furthermore, IPI notes that the
complainants would have no role in deciding which
advisors could be appointed to
the commission.
Section 6 (8) states:
Subject to the provisions of this act, the commission
and any of its committees
may regulate its own procedure.
In the event that there were to be self-regulation of
the Commission, IPI would
have no difficulties regarding the Commission’s
ability to draft its own
procedures (subject to the fact that they met
international standards in this
area).
However, IPI believes that this may be used to include
procedures that are
against internationally accepted standards of fairness
and equity. This
subsection should also be viewed in conjunction with
section 22 which states
that there is to be no appeal from the decision of the
Commission. As a result,
given the present contents of the proposed
legislation, there would be no
opportunity to review the fairness of the procedures
adopted by the Commission.
6. Delegation
Section 7 states:
"The commission may delegate any of its functions to
committees comprising of
non-members or both."
IPI believes that the Commission should not have the
power to delegate any of
its functions to a committee. In addition, IPI
believes that this would have a
grave effect on the fairness of the procedures and
might lead to committees that
do not fairly reflect the composition of the
Commission as a whole. Furthermore,
the inclusion of non-members on any committee might
lead to the government
packing committees with its own members, thus throwing
into doubt the legitimacy
of the procedures.
In keeping with the previous recommendation that the
Commission should be
self-regulating, IPI would argue that the body should
review complaints in
writing and only hold hearings where there were
exceptional circumstances. This
would allow the Commission to discuss all complaints
as a single body and would
remove the need to create sub-committees.
IPI recommends that this section is deleted.
7. Registration
Section 10 (1) states:
"No media organisation or media practitioner shall
engage in the dissemination
of information unless registered in accordance with
this section."
Subsections 2, 3 and 4 concern duty to register
annually, the duty of a media
organisation to register the names of media
practitioners and other duties
related to registration.
Having dealt with the question of registration above,
IPI strongly recommends
that these subsections should be deleted.
Section 10 (5) states:
"A media organisation which, or media practitioner,
who contravenes this section
commits an offence and is liable, on conviction, to a
fine of not less than 5,
000 dalasis, and in default of payment of such fine
for a period of thirty days
from the date of conviction, the licence of the media
practitioner or media
organisation shall be deemed to be suspended for a
period of three months, and
in the case of a media practitioner for a period of
nine months."
With regard to the above, IPI wishes to make the
following points.
First, the use of the terms "offence", "liable" and
"conviction" are aspects of
the criminal law and are totally inappropriate when
applied to the media.
Journalists should not be punished for carrying out
their professional duties.
Second, concerning the power of the Commission to
issue fines for failing to
register, such a practice is a serious breach of press
freedom. Once again,
journalists should not face penalties for the work
they undertake.
Third, the power to suspend journalists from the
register is an attempt to
control the free flow of information
by preventing journalists from practicing their
profession.
In addition, the Gambian government should bear in
mind its obligations under
article 8 of the African [Banjul] Charter on Human and
People’s Rights which
states:
"Freedom of conscience, the profession and free
practice of religion shall be
guaranteed."
IPI is of the opinion that the enforced registration,
coupled with the power to
fine or suspend, is in breach of this guarantee.
Concerning the power to carry out these acts, the
Commission is not able to act
in a quasi-judicial manner and this once against
threatens the right of
journalists to appear before an impartial, competent
court which treats them
equally before the law.
IPI firmly believes that journalists or media
organisations should not be
subject to criminal sanctions for carrying out their
profession nor should they
be sanctioned for a breach of administrative
procedure.
Section 10 (5) should be deleted.
8. Complaints
Section 11 (1) states:
"A person who is aggrieved by anything
a) published in a newspaper or broadcast by a
broadcast station in respect of
that person, or
b) done in respect of that person by any media
practitioner or media
organisation in that capacity
may complain in writing."
The phrase "aggrieved" is not defined within the act
and is a hazy conception
without definite meaning. Therefore, it is unsuitable
for the purposes of
legislation. IPI believes any complaint must be based
on a breach of a code of
practice and not on an ill-defined concept.
The word "aggrieved" should be deleted and replaced
with a suitable phrase
concerning a breach of the code of practice.
On the basis of 11 (2) a complaint may be made within
12 months "from the day on
which the complainant first had or could have had
notice of the matters alleged
in the complaint."
Although it is right and proper that the time for
making a complaint should run
from the moment that the complainant became aware of
the matters alleged, the
period of 12 months from that point is too long. The
complaint should be made
while the issue is still clear in the memory of the
complainant.
IPI recommends that it should be reduced to one month.
Section 11 (4) states:
"Where a complaint made by a person who is an inmate
or a detainee of a
government institution is addressed to the commission,
the complaint shall be
forwarded to the commission by the person for the time
being in charge of that
institution within 14 days of its receipt."
IPI welcomes this section as it allows those
institutionalised under the
criminal code or the Mental Health Act to bring
complaints and uphold their
civil rights.
9. Inquiry into Complaints
Section 12 states:
"The commission may inquire and investigate into a
complaint made against a
media practitioner received by it".
In examining the above section, IPI is unsure of the
difference between
"inquire" and "investigate". Although IPI believes
that the Commission should
have the power to review or inquire into a complaint
it is troubled by the use
of the phrase "investigate". It is IPI’s belief that
the phrase is more closely
connected to the pursuit of a potential criminal
investigation, an ability that
is incompatible with the Commission.
Based on IPI’s examination, the Commission does not
have the competence to order
or carry out an investigation that should be properly
left to those institutions
in Gambian society responsible for upholding the
criminal law. Indeed, IPI fears
that the use of the phrase "investigate" may well mean
that the Commission will
pursue criminal investigations through the auspices of
the police authorities.
IPI would also be worried that there is a distinct
conflict of interest. In most
democracies the role of the judiciary is separated
from that of investigatory
bodies, this is because it is felt that impartiality
would be lost where the
judiciary has a role in carrying out an investigation
while also being
responsible for rendering judgement.
Therefore, the role of the Commission should be
narrowed to merely reviewing
complaints on the basis of information presented to
the commission and it should
not go further in the attempt to reveal additional
evidence.
The word "investigate" should be deleted.
10. Evidence and Procedure
Section 13 (1) states:
"Subject to the provisions of this Act, the procedure
for conducting an inquiry
shall be such as the Commission considers appropriate
in the circumstances."
Once again the commission has been given extremely
wide powers to set the limits
of its procedures and standards of evidence. This
means that the Commission has
the power to act as a quasi-judicial body but is not
limited or restrained by
any outside body. IPI has grave doubts that this is
the correct approach in
determining the powers of the Commission. Indeed, it
fears that the powers given
to the Commission – which appear to go beyond those
given to ordinary courts –
will be the source of miscarriages of justice.
As examples, international practices state that the
defendant has the right to
remain silent, the right to legal representation and
standards of evidence are
set for all courts - whether civil or criminal.
However, according to this
section, the Commission has the power to set its own
rules for these matters. A
power that is totally inappropriate for the
Commission.
This is particularly true on the basis of the current
composition of the
Commission that has wide-ranging powers without the
experience and training to
properly use them.
The above section should be deleted.
Section 13 (2) states:
"The commission may receive in evidence any relevant
material evidence not
withstanding that such evidence could be used in
evidence before the ordinary
courts."
IPI believes that the there are several difficulties
with this section. Although
the section states that evidence would be excluded if
it would be excluded in
the ordinary courts, there would appear to be no
procedure in place to determine
this fact. On the basis of section 22 (1), no appeal
lies from the Commission
and so IPI finds it difficult to envisage how evidence
will be assessed in
comparison to admissibility in the ordinary courts.
Furthermore, IPI does not
believe that the Commission has either the capacity or
the competence to make
this determination.
As previously mentioned, the complaint should be
assessed on the merits of the
written evidence and not on the basis of further
evidence revealed by any
investigation instigated by the Commission.
The above section should be deleted.
Section 13 (3) states:
"The commission shall, before initiating an inquiry,
give the media practitioner
against whom the complaint is made an opportunity to
make representations to the
commission, either orally or in writing, commenting on
the complaint."
IPI believes that the Commission should review written
complaints and reserve
the power to hold oral hearings only in exceptional
circumstances. The emphasis
on oral hearings places a great burden on the
Commission and would substantially
increase the costs of running the body. The decision
to hold oral hearings would
allow for the inclusion of quasi-judicial rules and
procedures that might lead
to the hiring of lawyers. Obviously, this would be
unfair on those complainants
who are unable to afford legal representation and
would have the effect of
creating a media court.
The above section should be redrafted to state that
oral hearings should only be
held in exceptional cases.
11. Summoning Witnesses
Section 14 states:
"(1) The commission may summon a person as a witness
and examine that witness
under oath or affirmation.
(2) A summons for the attendance of a witness or the
production of a document
shall be served in the same manner as if it were a
subpoena for the attendance
of a witness in a court.
(3) The commission may issue a warrant for the arrest
of a person who, having
been served with a summons, fails to appear before the
commission."
As previously mentioned, IPI believes that oral
hearings should only be held in
exceptional circumstances and that appearance before
the commission should be
voluntary. The power of the commission to enforce
participation through the
issue of a summons is entirely inappropriate and gives
the Commission judicial
powers. Furthermore, the power of arrest attached to a
subpoena for
non-attendance is against international practices when
dealing with the media.
Aside from the subpoena of individuals, the power of
the Commission to order the
delivery up of documents could mean that journalists
are forced to deliver
documents that may incriminate themselves or breach
the right of confidentiality
awarded to journalists’ sources. Given the lack of
judicial safeguards and the
fact that there is little legal experience in the
Commission, the power to order
delivery of documents may well be abused.
The above section should be deleted from the proposed
legislation.
12. Discontinuance of an Inquiry
Section 16 (1) states:
"The commission may decline to inquire or discontinue
an inquiry into a
complaint where the commission is satisfied that
(a) the complaint is trivial, frivolous, vexatious, or
not made in good faith;
or
(b) the inquiry would be unnecessary, improper or
worthless."
The above has been borrowed from the judicial sphere
and is improper within the
framework of the Commission.
It should be replaced with a brief statement that a
complaint may be rejected if
it does not disclose any merits.
13. Immunity of the Commission
Section 18 states:
"(1) no civil proceedings shall lie against the
commission or a member of staff
of the commission for anything done in the exercise of
official functions.
(2) The commission or a member of staff shall not be
called to give evidence or
to produce any document or article before a court or
tribunal or in any
proceeding of a judicial nature in respect of anything
coming to the knowledge
of the commission or its staff in the exercise of
official functions unless the
consent of the chairperson or vice-chairperson has
first been obtained."
With regard to section 18 (1) above, the immunity
against civil proceedings
would appear to preclude any review of the decisions
made by the Commission. The
Commission would then be in the peculiar position of
being a rare body within
Gambian society that does not have its decisions
reviewed. In addition, section
18 (2) provides immunity for members of staff, IPI
fears that this immunity
would extend to any attempts to review the decisions
made by the Commission and
any possible inquiries held on the activities of the
Commission.
The decision to rely on the consent of the chairperson
or vice-chairperson would
also allow the Commission to block any attempt to call
commission members in any
proceedings.
Furthermore, IPI has distinct fears concerning the
phrase "in any proceeding of
a judicial nature" which appears to prevent the
appearance, without the
aforesaid consent, at criminal proceedings. Such a
clause would have a profound
effect on the criminal law in Gambia and it is
difficult to believe that the
National Assembly intended for the criminal law to be
diluted in such a manner.
In theory, the application of this section could
prevent the proper
investigation of any potential criminal complaints.
The powers under this section give the commission the
rights of the judiciary
and would appear to go beyond those normally accorded
to this institution. IPI
believes that the commission should not have
quasi-judicial powers.
In view of this, the above section should be deleted.
14. General Powers
According to section 19, the commission may:
(b) recommend to the secretary of state the suspension
of the licence of a media
organisation or media practitioner.
IPI has dealt with the question of registration in
previous sections.
The power of suspension should be deleted from the
proposed legislation.
(c) determine the nature and extent of an inquiry into
a complaint.
This power is too widely drawn and ill defined. IPI
believes that the only
question to be examined by the Commission is whether
the complaint before it
discloses any merits. There should be no need for the
Commission to set the
parameters for any investigation of the case.
This subsection should be redrafted to reflect the
above comment.
(d) require and have access to any book, voucher,
stamp, newspaper, tape,
equipment, data storage device, store or other movable
goods in the possession
or under the control of any person in relation to an
inquiry.
The above section would appear to sanction raids on
media outlets based on the
authority of the commission. Once again, these
judicial powers appear to have
been given to the commission without judicial
safeguards and are in breach of
international standards. Furthermore, the section
could be used to force
journalists or media outlets to reveal their sources -
a power that is in breach
of the internationally accepted standard that
journalists have a right to
protect their sources.
This subsection should be deleted from the proposed
legislation.
(e) request particulars and information from any media
practitioner in relation
to any inquiry; and
IPI fears that such powers would enable the Commission
to force journalists to
reveal their confidential sources.
The above subsection should be deleted from the
proposed legislation.
Concerning the section when viewed as a whole, IPI
believes that the
Commission’s powers of investigation are incompatible
with its role as a body
that reviews complaints. The power to conduct
investigations should be clearly
separated from the body that sits in judgement as
there is the clear possibility
of a conflict of interest.
15. Directive to Apologise and Imposition of other
Penalty
Section 20 (1) states:
"Where, after inquiring into a complaint under section
12, the commission is
satisfied that -
(c) the conduct of a media practitioner or media
organisation is, in the
circumstances of the case blameworthy."
Although previous subsections relate directly to a
code of practice, the above
subsection introduces the ill-defined notion of
"blameworthy". This is not
defined in the act and IPI feels that the phrase is
too subjective for the
purposes of legislation and may be used to find
journalists guilty of an offence
even where there has been no breach of the code of
practice.
Furthermore, under subsection (b)
"the commission may, in addition to its powers under
section 19
(i) direct the media practitioner or media
organisation concerned to publish or
broadcast in such manner as the commission may direct
an apology or correction;
(ii) reprimand the media practitioner or media
organisation concerned in the
matter;
(iii) impose a penalty of not less than ten thousand
dalasis: and
(iv) order that an amount of not less than ten
thousand dalasis be paid to the
complainant as compensation."
In many press councils, involving voluntary
membership, there is often an
agreement that newspapers will publish a correction or
apology. However, the
extent of the apology or correction and its position
within the newspaper is
left to the discretion of the newspaper. With the
current legislation, it would
appear that the Commission has the power to dictate
where the correction or
apology is to be placed within the newspaper. This
effectively removes editorial
independence.
The phrase "in such manner as the commission may
direct" should be deleted from
subsection (b) (i).
With regard to the imposition of penalties, the role
of the Commission should be
to ensure that corrections or apologies are made.
However, this should be based
on voluntary membership and with the approval of the
newspapers themselves.
Furthermore, the use of a penalty under subsection (b)
(iii) is a criminal
sanction and should not be administered by the
Commission.
16. Appeals
Section 22 states:
"(1) No appeal shall lie from a decision of the
commission.
(2) The commission may review its own decision on a
matter based on fresh
evidence."
Article 14 (5) of the International Covenant on Civil
and Political Rights
states:
" Everyone convicted of a crime shall have the right
to his conviction and
sentence being reviewed by a higher tribunal according
to law".
It would appear that on this basis that Gambia is in
clear breach of its
obligations to this Covenant.
IPI feels that the failure to include an appeal may
lead to miscarriages of
justice.
Furthermore, the commission’s power to review cases
only on a matter based on
fresh evidence is, for all intents and purposes, an
appeal but it is deeply
flawed. Such a power would involve the body reviewing
the decision it had made
at first instance. A decision that refutes the
accepted standard that an appeal
body should be separate and distinct from the original
body or, in the words of
article 14 (5) above, a "higher tribunal"..
IPI considers that this section should be deleted.
17. Funds
According to section 23 of the proposed legislation,
funds for the Commission
shall be drawn from the National Assembly, monies and
assets that vest in or
accrue to the Commission, monies paid to the
Commission and donations.
IPI believes that funding for the Commission should
only be taken from the
political sphere at arm’s length, thus insuring that
there is no attempt at
political influence over the body.
Regarding the question of monies paid to the
Commission this would appear to
relate to penalties paid by offending media
organisations or media
practitioners. IPI is against such payments as they
may well act as an incentive
for the Commission to hand out fines. Donations would
also appear to be
inappropriate for the Commission as they may open up
the way for influence over
the Commission.
Although IPI accepts government funding, if at arm’s
length, it believes that
the media organisations themselves should fund a
voluntary and self-regulating
press council.
18. Offences
"Section 26 states:
Any person who:
(a) having been summoned as a witness fails to appear
before the commission;
As previously mentioned, IPI believes that appearance
before the Commission
should be on a voluntary basis and that the use of
judicial procedures is
inappropriate for the Commission.
IPI would delete this from the proposed legislation.
(b) being a witness before the commission refuses to
be sworn or affirmed,
Once again, this should be deleted from the proposed
legislation.
(c) having been sworn or affirmed knowingly makes a
false statement or tenders a
false document touching any matter which is material
to any question under
inquiry,
The above power is suitable only for a court and
should not be within the remit
of the Commission. As a consequence, the Commission
should assess the evidence
before it in order to reach a decision. It should not
be for the Commission,
which has little or no legal competence, to inquire
into whether a "false
statement" has been made or whether a "false document
has been tendered".
The above subsection should be deleted from the
proposed legislation.
(d) intentionally insults, interrupts or obstructs the
commission or member of
staff of the commission in the performance of
functions under this Act, or
IPI believes that the above subsection gives the
Commission extremely wide
powers. The phrase "intentionally insults" is vague
and open to abuse by the
Commission. In addition, IPI finds it difficult to
believe that those who appear
before the body should be penalised for
"interruption", another vague phrase
which would appear to have no definite meaning.
Finally, the word "obstruct"
causes similar problems.
IPI fears that where a journalist refuses to give
evidence, as is his right
according to international practices, or refuses to
reveal confidential sources,
he may be liable under this subsection for
"obstructing" the commission.
In affirming the right to silence before a court of
law, IPI would remind the
Gambian government of its obligations under article 14
of the International
Covenant on Civil and Political Rights which states:
"In the determination of any criminal charge against
him, everyone shall be
entitled to the following minimum guarantees, in full
equality:
(g) Not to be compelled to testify against himself or
to confess his guilt".
This subsection should be deleted from the proposed
legislation.
(e) intentionally disobeys an order made by the
commission,
commits an offence and is liable on conviction, where
no specific penalty is
provided for, to a fine of not less than five thousand
dalasis or a term of
imprisonment of not less than six months or to both a
fine or imprisonment."
Regarding the power of the Commission to fine or
imprison those appearing before
the commission, IPI believes this to be entirely
inappropriate for the
Commission. Journalists should not be punished for the
work that they carry out,
especially as many of the errors made are simply
mistakes. Such a power has
profound implications for press freedom in Gambia and
is in strict contradiction
to the practices of other countries in this area.
The above subsection should be deleted from the
proposed legislation.
19. Regulations
Section 27 states:
The secretary of state may, on the recommendation of
the commission, for the
better carrying out of the provisions of this act and,
without limiting the
generality of the foregoing, make regulations
providing for a code of conduct
for media practitioners.
The above section removes any perceived independence
that the Commission may
have. It allows for direct government interference in
the procedures and
processes of the Commission and would enable the
government to introduce further
rules that minimise the rights of those appearing
before the Commission.
IPI believes that a self-regulating Commission should
be allowed to devise its
own rules and procedures free of government
interference.
The above section should be deleted from the proposed
legislation.
20. Conclusion
In the opinion of IPI, there are fundamental flaws in
the NMCB, 1999 that need
to be immediately addressed. Many of the provisions
are in direct opposition to
accepted practices in this area and, if passed into
law, the proposed
legislation will have a detrimental effect on press
freedom and freedom of
expression in Gambia.
Of particular concern is the decision to pass
legislation in this field. IPI
firmly believes that the printed press in Gambia
should be allowed to regulate
their own proceedings, thus creating an independent
body to review complaints. A
failure to carry this out would have a severe impact
on the Gambian media scene
and leave the media prey to manipulation and coercion
by political institutions.
Aside from these fears, questions arising from the
composition, competence and
impartiality of the Commission mean that journalists
will be unable to receive a
fair hearing before the body. In consequence, the
profession of journalism will
receive unequal treatment before the law.
The power under the proposed legislation to award
penalties, create registers,
suspend journalists and media outlets and, in certain
cases, impose prison
sentences are powers that fly in the face of accepted
international practices.
The decision to include these powers would appear to
be motivated by a desire to
control the journalism profession and rein in the free
flow of information.
Furthermore, such powers should be seen in conjunction
with the failure of the
proposed legislation to include a proper appeal system
- a fact that can only
serve to increase the fear that there will be
miscarriages of justice.
Another concern is the desire of the drafters to give
the Commission the power
to undertake investigations into complaints. This
desire, matched by the
attendant powers to seize documents and force
journalists to reveal information,
will undermine the essential notion that journalists
have a right not to reveal
the sources of their information. If made into law,
these provisions will give
the Commission overwhelming powers and would negate
the press freedom that
currently exists in Gambia.
When viewed as a whole, the tone of the legislation is
one of control. Indeed,
it is quite clear from reviewing the legislation that
journalists, and the media
in general, are to be separated out and treated
differently from every other
sector of Gambian society. As a result, journalists
will be shorn of many of the
rights and protections that are afforded to other
groups and individuals in a
democratic society.
21. Recommendations
With the above in mind. IPI believes that the
following amendments should be
made to the proposed legislation:
(i) General Recommendations
(1) The printed press should be separated from the
electronic media. And
(2) The printed media should be allowed to regulate
their own activities free of
government interference;
(ii) Specific Recommendations
(1) Regarding the composition of the Commission, this
should be radically
altered and the Commission should be divested of its
quasi-judicial powers;
(2) Section 5 (a), (b) and (c) should be deleted;
(3) With regard to section 5 (d), the Gambian printed
media should be allowed to
develop its own standards free of government
interference;
(4) With regard to section 5 (e) and (f), these should
be deleted (*or narrowly
defined);
(5) Section 6 (6) and section 6 (8) should be deleted;
(6) Section 7 should be deleted;
(7) Section 10 (1), (2), (3) and (5) should be
deleted.
(8) The word "aggrieved" should be deleted and a more
suitable word or phrase
substituted;
(9) The time period contained in section 11 should be
reduced to one month;
(10) Regarding section 12, the word "investigate"
should be deleted;
(11) Section 13 (1) and (2) should be deleted;
(12) Section 13 (3) should be redrafted to state that
oral hearings should only
be held in exceptional circumstances;
(13) Section 14 should be deleted;
(14) Section 18 should be deleted.
(15) Section 19 (b), (d) and (e) should be deleted;
(16) Section 19 (c) should be redrafted to reflect
that a complaint should be
examined on its own merits;
(17) Section 20 should be deleted;
(18) Section 22 should be deleted;
(19) Section 23 should be amended to reflect the fact
that government funding
should be given at arm’s length; and
(20) Section 26 should be deleted.


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