Report on Draft Gambian National Media Commission Bill, 1999

International Press Institute

(Issued on 9 March 2001)

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.