While South Africa’s ruling African National Congress (ANC) discusses the party’s proposal for a media appeals tribunal, delegates should take note of a landmark ruling in Nigeria this year in which a High Court judge declared a government-dominated press council unconstitutional.
Five months before the ANC’s release of a discussion document referencing a special tribunal for the media, Justice A.M. Liman, a judge of Nigeria’s Federal High Court ruled in favor of a petition challenging the constitutionality of the Nigerian Press Council, set up by decree during military rule in 1992. The press council membership of 19 included representatives from the media, the public, and the government. “In theory this is fine, but in practice the majority of these posts are appointed by the government, including the current chairman who is not a journalist. He is an accountant,” said Newspapers’ Proprietors Association of Nigeria President Ajibola Ogunsola.
In Nigeria, government pursuit of a statutory press council dates as far back as 1978, according to CPJ research, and has continued under the country’s various military and civilian rulers. Gen. Ibrahim Babaginda, who is currently running as a civilian candidate in presidential elections scheduled for next year, issued the Nigerian Press Council Decree 85 of 1992 among other repressive edicts such as the Offensive Publications (Proscription) Decree and the Newspaper Registration Board Decree No. 43 of 1993.
Gbenga Adefaye, president of the Guild of Editors, said Babangida’s regime sought to legislate every possible aspect of media activities. “There was a law to regulate advertising practice, a law to regulate broadcasting, filmmaking, and they also wanted to regulate the practice [of journalism].” In 1997, under the regime of Gen. Sani Abacha, then-minister of information Walter Ofonagoro threatened to set up a “press court” to charge journalists who “report untruths.” In 1999, the administration of another military ruler, Gen. Abdusalam Abubakar, repackaged the registration Decree No. 43 as the Nigerian Press Council (Amendment) Decree No. 60, which threatened fines and jail time for non-compliant journalists. It was then that a coalition of journalists fought back. “As a result members of the Nigerian Guild of Editors, the Nigeria Union of Journalists, and NPAN refused to nominate members,” according to Ogunsula.
Nigeria’s transition to democracy and the enactment of a new constitution in 1999 gave a coalition of journalists the opportunity to challenge the constitutionality of the repressive decrees. “When the military was in power, the government had legislation in place not to entertain press freedom cases. We now have the freedom to go to court,” said veteran journalist Ray Ekpu, one of the petitioners. The democratic transition did not, however, stop legislative efforts by politicians to regulate the press. “They wanted government to open a register and deregister journalists, to legislate salaries, which is crazy in a free market economy, to determine qualifications to enter profession,” said Adefaye, referring to the Nigerian Press and Practice of Journalism Council Bill, which was withdrawn under intense criticism in 2009. The government has appealed the constitutional review ruling, reported veteran journalist Lanre Idowu, but Adefaye told CPJ that “even if they appeal, it’s a major constitutional victory for us.”
In South Africa, ANC officials, including President Jacob Zuma, have proposed a media tribunal “accountable to parliament”–a chamber dominated by Zuma’s party–and criticized South Africa’s self-regulatory Press Council and ombudsman. ANC officials went as far as making claims that the proposed media tribunal would benefit South Africans unable to afford civil libel lawyers. “Here, [the poor] would have an institution to go to,” Zuma declared before parliament this month. In fact, the poor have not been the target of the kind of press scrutiny that is devoted to the ANC and the government. In his remarks, Zuma, whose personal scandals have filled newspaper columns, appeared to allude to this. “We are concerned because a lot of pain has been caused by how the media has been reporting on certain individuals in the country.” Similarly, press scrutiny has led governments in Botswana and Zambia in efforts to force the press under statutory regulation. In Uganda, journalists like Peter Mwesige are challenging government legislation seeking to empower a statutory media council, already dominated by the government, to sanction vague offenses like the “publication of “information injurious to national security” or the economy.
Most journalists and press freedom advocates believe–and the record of government-led regulation of the media in Africa has proven–that allowing politicians to regulate the press inevitably leads to political censorship of the news media. The statutory press council in Nigeria had “rather created an illicit ombudsman in the [Nigerian statutory press] council, which will certainly be used to define and tailor the editorial directions and policies of the media,” wrote Justice Liman in his decision. As for one of the victorious petitioners, Adefaye, the NPAN and the Nigerian Guild of Editors have replicated the South African model of an ombudsman and a self-regulatory press council. “For us, if there is any form of regulation, it should be done by [media] stakeholders. No government really wants the press to be completely free,” he said.