(ARTICLE 19/IFEX) – The following is an ARTICLE 19 press release: London, 22 March 1998, For immediate release NIGERIAN MEDIA UNITES TO DEMAND REFORM Today in Lagos, a platform of action for reform of the laws which currently restrict the Nigerian media was formulated by an unprecedented gathering of representatives of the media itself – […]
(ARTICLE 19/IFEX) – The following is an ARTICLE 19 press release:
London, 22 March 1998, For immediate release
NIGERIAN MEDIA UNITES TO DEMAND REFORM
Today in Lagos, a platform of action for reform of the laws which
currently
restrict the Nigerian media was formulated by an unprecedented gathering
of
representatives of the media itself – both independent and
state-controlled – regulatory bodies, local and international
non-governmental organisations. The demand for immediate action on
specific
points – agreed after three days of intensive debate – will be presented
to
the government of Nigeria.
Media Rights Agenda, a Nigerian non-governmental organisation, organised
the
conference in association with London-based ARTICLE 19 (International
Centre Against Censorship), and the National Human Rights Commission.
The
event was funded by the EU and the Swedish International Development
Agency
(SIDA).
Edetaen Ojo, Director of Media Rights Agenda and Dr Jon Lunn, Acting
Head of
Africa Programme at ARTICLE 19, said today:
“A body representing hugely diverse opinions has agreed that a change in
the
media environment represents an essential part of the transition to
democratic rule. We now call upon the government to engage in discussion
with us to ensure that our recommendations, which will bring Nigerian
laws
into line with international law and standards, are implemented as soon
as
possible.
“The sooner these changes are made, the sooner the Nigerian people will
be
able to believe that there is a real democratic transition underway.
They
will then be able to exercise their right to freedom of expression and
participation in democratic debate without fear and intimidation,” they
added.
Participants discussed the Constitutional framework under which the
media
will operate, and recommended that specific guarantees not only of
freedom
of expression, but of media freedom and freedom of information should be
included, as they have been in other African countries’ constitutions.
They
urged the government to publish the text of a draft constitution
immediately
and to circulate it widely.
Specific recommendations included in the ‘Ota Platform of Action On
Media
Law Reform in Nigeria’ include:
– The need for government to be distanced from the work of press
regulatory
bodies and broadcasting licencing
– The structure of a freedom of information act
– Changing the law on defamation so that it is not a criminal offence,
and
cannot be used as a means of gagging the press for legitimate expression
of
opinions
– The need for media professionals to commit themselves to meeting the
highest standards of their profession, and to represent the widest
possible
range of opinions
– That the government should not have power to licence or define who can
practice as a journalist.
THE OTA PLATFORM OF ACTION ON MEDIA LAW REFORM IN NIGERIA
Preamble
Participants at the Media Law Reform Workshop, held at Ota, Nigeria,
from
16-18 March 1999, heard a wide range of representations regarding the
need
for media law reform in the context of Nigeria’s fragile transition to
democracy. These included:
– Justice PK Nwokedi (Retd), Chairman of the Nigerian National Human
Rights
Commission
– Mr Abid Hussein, United Nations Special Rapporteur on Freedom of
Opinion
and Expression
– Mrs Glenys Kinnock, Member of the European Parliament
– Professor Auwalu Hamisu Yadudu, Special Adviser, Legal Affairs, to the
Head of State of the Federal Republic of Nigeria
– Prince Tony Momoh, former Minister of Information, media consultant
and
legal practitioner
On the basis of these representations and their deliberations,
participants
at the workshop agreed on the following Platform of Action, which they
call
upon all levels and branches of government to endorse and implement at
the
earliest opportunity.
Media law reform is a key dimension of the democratic transition and
free
opinion and expression. It is in that spirit that participants at the
workshop call upon the government to give active consideration to this
Platform of Action.
A General and constitutional issues
1) The present military government should repeal repressive decrees
before
it leaves power on 29 May 1999. However, if it has failed to do so, the
new
Constitution should oblige the National Assembly to repeal those decrees
which are in breach of Nigeria’s obligations under international human
rights law within one month of assumption of office. Amongst those
decrees
identified by participants were:
– The State Security (Detention of Persons) Decree, No 2 of 1984
– The Constitution (Suspension and Modification) Decree, No 107 of
1993
– The Federal Military Government (Supremacy and Enforcement of Powers)
Decree, No 12 of 1994
– The Treason and Other Offences (Special Military Tribunal), Decree No
1 of
1986
– The Treason and Treasonable Offences Decree, No 29 of 1993
– The Offensive Publications (Proscription) Decree, No 35 of 1993
– The Newspapers Decree, No 43 of 1993
– The Guardian and Punch Newspapers (Proscription) Decree, No 48 of 1994
2) The text of the draft Constitution which will form the basis of the
4th
Republic should be published immediately and widely circulated.
3) The new Constitution should contain provisions giving specific
protection
to the media, including its editorial independence, and recognition of
the
confidentiality of journalistic sources.
4) The new Constitution should also contain a specific guarantee of the
right to access to public information as an expression of the right of
the
people to have an accountable government.
5) There should be independent and impartial investigations of all
outstanding cases of alleged human rights abuses, including the death
and
“disappearance” respectively of the journalists Bagauda Kaltho and
Chinedu
Offoaro and other similar offences.
6) Criminal sanctions are an inappropriate response to breaches of
journalistic ethics. Accordingly, such criminal sanctions should be
removed
from all legislation, where they exist.
B Specific media and freedom of expression issues
7) Regarding the legal and institutional framework governing the press:
– Participants agreed that the aim should be for the press to be
self-regulating. Accordingly, any Press Council should ideally be
non-statutory and funded by the stakeholders.
– However, until such time as this is possible, any statutory Press
Council
should be effectively self-regulating and, as far as possible, fully
independent of government.
– To this end, Decree No 85 of 1992 should be substantially amended,
including as below.
– The Chair and members of the Press Council should in future be
appointed
from a list of candidates drawn up by the Nigerian Press Organisation
which
is then presented to the National Assembly. An appropriate committee of
the
National Assembly should be responsible for selecting the chair and
members
of the Press Council from that list.
– Until the Press Council becomes a self-regulating, self-funding body,
the
government should continue to fund the Press Council.
– All decisions of the Press Council should be published and
disseminated
widely. The annual report and accounts should also be published
– Participants rejected any idea of mandatory registration of
journalists by
the government. These provisions should be removed from the statute.
– There should be no requirement that newspapers be registered.
Publishers
should be simply required to satisfy company law.
– Journalist’s right to freedom of movement should be fully respected at
the
country’s entry and exit ports.
– The 1964 Printing Press Act should be repealed.
8) Regarding the institutional and legal framework governing the
broadcast/electronic media:
– Participants agreed that the fundamental principle governing public
broadcasting is that it should be fully independent of government in
terms
of editorial independence, method of funding, appointments processes.
– Accordingly, Decree No 38 of 1992 should be amended to ensure that the
National Broadcasting Commission is fully independent of government. All
members of the Commission should be appointed by and accountable to the
National Assembly in open public hearings.
– The issuing and revocation of licenses by the National Broadcasting
Commission should be transparent, non-discriminatory and should
encourage
diversity (for example, through community broadcasting).
– The National Broadcasting Commission should be the sole issuer and
revoker
of such licenses. The process should be subject to judicial review.
– To level the playing field as between public broadcaster and private
broadcaster, public broadcasters should not engage in commercial
broadcasting.
– The National Broadcasting Commission should promote broadcasting which
satisfies the social, cultural and religious interests of the public.
– The government should support the broadcasting sector by ensuring that
there is adequate public infrastructure (eg electricity, affordable and
reliable telecommunications) and economic policy incentives.
– Media monopolies, whether state or private, shall be discouraged by
establishing clear limits on media ownership, including cross-ownership
between the broadcast and print sectors.
9) Regarding freedom of information:
– In addition to a constitutional guarantee of the right to access to
public
information, a Freedom of Information Act should be enacted at the
earliest
possible opportunity, reflecting the principle of maximum disclosure.
– Participants agreed that the draft Access to Public Records and
Official
Information Act published by Media Rights Agenda, Civil Liberties
Organisation and the Nigerian Union of Journalists, should be taken as
the
basis for discussions on this issue, but that its provisions require
further
review.
– All legislation which unduly inhibits or restricts the right to
freedom of
information, such as the Official Secrets Act, should be amended to
reflect
the principles of the Freedom of Information Act.
– The National Archives Act should be reviewed and the clause which
provides
for the non-disclosure of state records or documents until after 10
years
should be expunged.
– The cost of obtaining public information should be affordable to the
majority of citizens.
– The proposed Act should contain a provision which stipulates that the
individual requesting the information need not demonstrate any specific
interest in the information provided.
– Doctoring of public records before they are released to the person,
entity
or community requesting them and obstruction of access to public records
should be made a criminal offence.
– In the application of any exception, there should be a presumption of
access to public information in the proposed Act. Exceptions should be
narrowly drawn and subject to a test of actual harm.
– There should be established an independent body to hear appeals from
individuals who have been denied access to public information. Such
appeals
should be held timeously.
– Government should take the lead, in close cooperation with civil
society,
to provide public education to civil servants and the broader population
about the workings and benefits of a freedom of information regime.
10) Regarding content-related offences:
– There should be a comprehensive review of all content-related offences
as
provided by law. In particular, participants agreed that all existing
provisions regarding sedition, “false news” and criminal defamation
(including the defamation of foreign princes, as well as the Defamatory
and
Offensive Publications Act, 1966) be repealed at the earliest
opportunity.
-The Obscene Publications Act should be reviewed so as to make it serve
a
more specifically targeted public interest objective.
– The judiciary should exercise its powers of contempt within the limits
of
constitutional guarantees.
11) Regarding civil defamation:
– The law of civil defamation requires substantial revision, as below.
– Certain public bodies should be prohibited from suing in libel (eg
NEPA,
NITEL, local government councils).
– It should be a defense in an action for civil defamation regarding a
statement on a matter of public interest for the defendant to show that
he
or she has not acted unreasonably in all the circumstances even if the
statement is false or cannot be shown to be true.
– Factors to be taken into account in establishing reasonableness
include:
a) the extent to which the author of the statement investigated the
matter
before publication;
b) the credibility of the source of the statement;
c)the extent to which alternative sources of information (for example,
public
authorities) have unjustifiably withheld information;
d) the nature of the
language in the statement is cast;
e) the extent to which the public’s right
to know in a timely fashion justified publication.
– Courts should adhere strictly to the rules governing the granting of
Ex
parte interim injunctions (ie where the defendant is not present) where
such
applications are made to them. In addition, procedural rules should be
adapted so as to accommodate this standard.
– There should be a strong presumption against granting interlocutory
injunctions (ie before the matter has been heard on the merits) –
whether ex
parte or inter partes. Such injunctions should not be granted unless:
a) the
harm alleged by the plaintiff is serious; b) the injunction would be
effective to prevent the harm (eg the matter has not already been
published) c) the harm cannot be redressed by other means, such as
monetary
compensation. In addition, there should be a presumption that monetary
compensation is normally sufficient to redress the harm done by a
defamatory
statement.
– Damages should be proportionate to the actual or proved harm.
– Damages should not in any case be so excessive as to produce a
chilling
effect on freedom of expression.
– Damages should be mitigated where certain factors are present. For
example: a) the extent to which the plaintiff is able to counter the
negative effect of the statement complained of: b) the
reasonableness of the
defendants behaviour; or c) any offer of apology or correction.
– No one should be required to prove the truth of an opinion.
– It should be defense to an action for defamation in relation to the
publication of any opinion whether or not it relates to a matter of
public
interest that the opinion is one that a reasonable person could hold in
the
circumstances.
– Where the opinion relates to a matter of public interest, there should
be
a greater degree of tolerance.
– Where there is a doubt as to whether a statement is one of fact or
opinion, there should be a presumption that it is a statement of
opinion.
– Fair and accurate media reports of all statements that are covered by
absolute privilege should also be absolutely privileged.
12) Regarding other issues:
– Media practitioners should commit themselves to meeting the highest
standards of professionalism in the conduct of their work.
– Media practitioners should allow whoever presents a reasonable claim
that
they have been wronged to exercise a right of reply. This reply should
be
given the same prominence as the actual story.
– Readers, viewers and listeners who wish to comment or present
alternative
views should be afforded every reasonable opportunity to do so.
C Statement of commitment
13) Participants agreed to work actively together and with government,
provided there is good faith, in pursuit of this Platform of Action.
They
agreed to initiate a dialogue with government on these matters as a
matter
of urgency and call on the government to respond positively.
14) Participants recognized that there were media-related issues which
had
not been fully addressed by the workshop and some issues which were
discussed may require further consideration. Accordingly, they mandated
the
sponsoring organisations of this workshop – Media Rights Agenda, the
Nigerian National Human Rights Commission and ARTICLE 19, the
International
Centre Against Censorship – and other interested parties to further
develop
and refine proposals for media law reform and to consult regularly with
the
other participants as part of this endeavour.
15) At the same time, participants agreed that the sponsoring
organisations
should undertake to develop appropriate strategies through which the
above
programme of media law reform can be realized. In addition to dialogue
with
the government, broader strategies of advocacy and litigation should
also be
pursued.
Proposed by Joan O’Dwyer, Minaj Communications
Seconded by Adebisi Adekunle, New Nigerian Newspapers
UNANIMOUSLY AGREED AT OTA, OGUN STATE, NIGERIA ON 18 MARCH 1999.
