Government cannot regulate the media – Edetaen Ojo

Why all the hues and cries over the proposed Press Council Bill. Is it really such a bad idea?

Yes, it is and there are many reasons why the Nigeria Press Council Repeal and Re-enactment Bill 2018, is a bad idea. The first reason is obviously one of Rule of Law. There is pending at the Supreme Court an appeal arising from the current Press Council Act as amended. Once this bill is passed, it has the effect of repealing the current Act and replacing it with something else. When that happens, it also has the effect of presenting the Supreme Court with a fate acompli. Once that is done, whatever decision they take is meaningless and whoever wins cannot enjoy the fruit of the victory because they have taken the substance of the case away. That is not something the National Assembly should be doing, to pass legislation to undermine a pending appeal before the Supreme Court. For that reason, the Bill should not be encouraged.

Edetaen Ojo

If there is an urgent need to put in place something to replace the existing Press Council Act, the appropriate approach would be to bring the stakeholders together to negotiate and agree on the path forward and then the appellants can then withdraw their appeal or enter into terms of settlement in which they can say in the light of the agreement we’ve reached, we ask the court to make the ruling that the terms of settlement would be the judgement of the court. But they have not done that rather they have gone and developed a new bill, which will have the effect of undermining whatever decision the Supreme Court gives.

 When you read the bill, there are so many errors, spelling, grammatical and other forms of errors that it will tell you that this is not a process that has been well thought through. If those basic errors can be made, it means that it is a shabbily done job that does not reflect the seriousness that something like this should have. If you are going to pass a law, it is something that should be taken seriously with a lot of reflection and a lot of consideration like; what were the issues that made the previous law unworkable or controversial, and you then make careful effort to resolve those issues. When you just hastily draft a bill and you present it for passage it does not indicate any seriousness given to that process.

Can you hazard a guess as to why the National Assembly would be in a hurry to pass this bill knowing, of course, that there is a pending law suit over the existing Act?
I do not believe that it is the National Assembly that is behind it. The National Assembly is, of course, the legislative body so people who have legislative proposals would go through the National Assembly. So somebody who is not willing to disclose who he/she is has presented a bill to the somebody in the National Assembly to sponsor as a Private Member Bill, but they are not really saying who is behind this bill.
The bill is sponsored by the Chairman of the Senate Committee on Information. That is how you also know that it’s something that is not original; someone is looking for a committee that is in charge of that issue to rush a bill through. Again, that is another reason why it is suspicious. If it is government, and I suspect that it is the Minister of Information or some other government functionary, you can initiate a process where you bring the critical stakeholders together and say it is not good that we don’t have a mechanism for enforcing professional standards and ethics in journalism so let’s agree, what are the issues, where do we agree, where do we have disagreements that we can then discuss and resolve and we can then present it to the National Assembly and say, this is the consensus from the media community. They are not doing that, that’s sneaking around and that in itself is suspicious. That’s another source of worry.

  In this current bill, there’s something they have introduced that I have not seen anywhere in the world. In the composition of the Nigerian Press Council, they have introduced two persons to represent the National Assembly. The question then is, for what? The legislative body really has no business sitting on the Press Council but that’s what they have done. I have never seen it anywhere in the world that you have parliament or the legislature being a member of a regulatory body. It’s going to be in conflict with its oversight responsibility, with its legislative functions and so on. That’s another problem we have with it.

  But perhaps the most serious deficiency that it faces that would not make it survive is the fact that it seems to criminalise an activity that is a constitutionally protected right, that is also protected under international human rights law. The whole issue of the Freedom of Expression is something that is protected in National Constitutions and in International Human Rights Laws. To now make it an offence for somebody to write and disseminate information, I don’t’ know how that is going to stand anywhere in the world. It’s not even an academic matter because there have been decisions of international human rights courts that have already laid it down that you cannot legislate that only a certain class of people can exercise the right to freedom of expression because it is a right that everybody has.

  It’s problematic to say that unless you have achieved this qualification, unless you are registered, you cannot gather information and disseminate information. That is what the bill seeks to do and that is extremely problematic and when you also consider that the Press Council, the way that it is conceptualised in the bill is supposed to report to the Minister of Information, then what you have again done is that you have subjected it to political authority. It’s not an independent body. It reports to a political appointee who in the scheme of things represents the ruling party, a political interest. There is always the risk that those who are critical of the ruling party or the government or that political interest will not get registered to practice journalism or they can have their name struck off the register when they displease the political authority. You now endanger journalists once you have that in place because they cannot afford to be too critical of the government in power otherwise they lose their right or ability to practice journalism. Broadly, those are the issues I have with the bill. It makes it a criminal offence for which you are liable to go to prison if you purport to practice journalism without being registered or being permitted to do so by the Press Council.

  However, the composition of the Press Council in this case is better than what it used to be under the current law that is being litigated because in the current law, the government has the right to appoint the majority of members who on their own could form a quorum and take decisions even if the other stakeholders do not agree. Under the current proposal government doesn’t have that kind of dominant control so there would need to be some negotiations but even so there are some illogicality in some of the provisions. For instance, on the one hand, it says that the Press Council would appoint one of its members as Executive Secretary. Now the Executive Secretary is a full time Chief Executive Officer (CEO)of the Press Council so if you are a practicing journalist and NUJ nominates you to represent them, then you get there and suddenly you become the Executive Secretary, you’re no longer a practicing journalist, you are now Chief Executive of the Council and it is vague about the appointment process of the Chief Executive.

Looking at the proposed bill, is it a totally bad piece of legislation?
There are some aspects I would call an improvement on the current law. But the bad aspects still make it thoroughly unacceptable.
A lot of people, especially those concerned have voiced their objections to the proposed bill, do you see the National Assembly bowing to the wish of the majority and discarding the bill?
You know we have a funny kind of democracy where elected representatives do not represent those who elected them. At the public hearing, apart from the Executive Secretary of the Press Council, Nnamdi Njemanze, and his predecessor Ayo Atoyebi who supported the passage of the bill with some amendments, every other person rejected it from all the other stakeholders. So you would think that at that point the bill is dead on arrival but it’s very possible that the National Assembly will go ahead and pass it if they are sufficiently motivated. There is no guarantee that the fact the majority say they don’t want it, will influence them, but in a proper democracy that is what should happen.
So if at the end of the day the bill is passed, what would be the option open to those who are opposed to it?
If they continue the legislative process, one of the options open to the journalism bodies is to summon them for contempt of court because their actions constitute contempt of the Supreme Court. They have no right to undermine the judicial process because that’s what they are doing. The courts would always say ‘let the status quo remain’ so that you don’t undermine the process that the court is embarking on. What they are doing directly is contrary to that principle so if they continue then obviously the option of taking them for contempt of court becomes a real one. We did not want to threaten them with that directly. We said to them we came here out of respect they also have to respect separation of powers, rule of law and all that.
 Looking at the journalism profession, do you think that practitioners have in anyway given whoever is behind the bill reason or room to come up with such a proposal?
I would say that there are a lot of issues relating to ethics and professional conduct that are very concerning, but it has never been a solution for government to regulate a profession that its primary role is to hold government accountable. Once government attempts to regulate, its approach would be to cripple that profession so that it can’t do its work effectively. It will silence critical voices. We are seeing it even in America where a President is pushing the limits of his powers in order to silence the critical press. So you cannot take that risk. There is a whole body of jurisprudence internationally that says that self regulation is the best option for regulating the media including at the level of African Commission.

  There are challenges, but government can either encourage or work with media stakeholders and come together to put in place a self regulatory mechanism.The Newspaper Proprietors Association (NPAN) has done something like that, they set up an Ombudsman, appointed somebody with a lot of credibility, Justice Onolaja, who had retired from the Court of Appeal to preside over it. If that system is allowed to work, then of course the profession can be sanitised, but only to an extent.

  Technology has also changed the profession. There was a time you could identity a class of people that these are professional journalists. Now in the digital age, you can’t do that. Take for instance Sahara Reporters, it’s a platform that’s quite popular and has a wide reach, but it’s not managed or run by professional journalists. Yes, those who are managing Sahara Reporters don’t have any training in Ethics but you cannot take away their right to freedom of expression. If you say that if they publish anything because they are not registered journalists you put them in prison, you will have a difficult and awkward situation at hand. The current effort at creating a mechanism around election coverage is one approach I believe we should look at where all the stakeholders come together to agree on a Media Code of Election Coverage. Discussions are on about how to enforce it. Online publishers have said they want to be part of the process and suggested having a representative in the body that would be charged with enforcement. If they have a representative in such a body, then you can say let’s discuss, how do you organise yourselves so that you can put pressure on each other to do the right thing. But government doesn’t want that approach. Government wants control because at the end of the day, it’s not just interested in the professional standard, it doesn’t want to be criticised. It wants to control those critical voices. That is the challenge we face.

You said technology has changed the media, how has it impacted the print media in particular?
It has impacted them negatively, not just in Nigeria but the world over. Now, people don’t see the need to buy newspapers when they can simply go online and get the same information much faster; things happen and a few minutes later you can get online and get the information without waiting till the next day or even waiting for the evening papers to see how they are reported. That has been a challenge.
> Then, of course, there are the other challenges of physically distributing printed copies. Even in small countries, it is a problem but in a massive country like Nigeria, it is difficult to print a paper today and it reaches places like Sokoto, Maiduguri and so on by midnight or early morning of the next day. It has impacted them negatively and the market is increasingly dwindling for them. Many of them are struggling to survive, a lot of them are dying off.

  There are countries where governments are trying to support the media financially because the market is shrinking and they don’t make enough money from sales and because of the reduction in their sales figures, advert is also impacted negatively. In some countries, governments have set up independent funds to help the media because the media of information is very important. You can’t rule an ignorant people. You have to find a system that enables people to get information to be enlightened and to make informed decision. Once you recognise that importance of the media, it’s at least an important conversation to have to say how can we support this sector because if you leave it to market forces alone, it cannot survive and there are very many sectors government supports because you can’t leave it to market forces. For instance, health sector; if you say only rich people can go to the hospital and get treatment half the population will die. Government has to invest in it and some other sectors like that. Media is similarly important so, government needs to invest in media, not just in print, even in access to the internet because again not everybody can afford access to the internet, saying I can buy data on a regular basis to be online. In a lot of countries, government has had to intervene either by investing in infrastructure to bring down cost or pegging the amount for which access is sold so that most people can afford it.

  We are not having these conversations in Nigeria. We let everybody go and fend for themselves so we breed a country of ignorant people that sometimes people talk and you can’t believe it’s a human being reasoning like that, but that is based on the amount of information that is available to them and if they don’t have access to available and accurate information then they become ripe minds for rumour mongers, speculation and all of that which is not healthy for a country.

You talked about government supporting the media by setting up an independent fund, if government here puts money into supporting the media, won’t that still take us to what we are trying to avoid, control of the media?
Well, that is why the fact of an independent fund is very important. If you take the United Kingdom (UK), for instance, the BBC is funded virtually entirely through independent funding. Everybody who owns a television set in the UK pays for a license to own a television set annually and that is managed by an independent organisation that disburses that money. Once you can set up an independent organisation that government does not interfere with, then you can come up with a formula of how to distribute the money.

  The Nigerian Constitution says that local governments would collect radio license fee. So you find that in many parts of the country, local governments set up barriers on the road and if you have a radio set on your car they force you to pay. What is that money used for? We don’t know. If you look at the NBC Act, it similarly contains provisions like collection of radio licence fees, but there is a conflict between the NBC Act and the Constitution because under the NBC Act, that is supposed to be used for development of the media industry in the country but in the Constitution, it doesn’t say who the beneficial owner of the money is. So the local governments collect the money and just keep it. I think that the original intention was that the local governments, because they are all over the country, would be the best collecting agents, but they were never supposed to be the owners of the money. But they have interpreted it to mean that they are the owners so they collect and keep. If the Constitution were to be properly developed around the issue, you just go beyond collection and spell out how the money should be managed. You can put in the NBC although the NBC is not part of the constitution because it was created by law not the constitution, but that can be easily amended by an amendment to give it a constitutional backing and then let the NBC manage the fund for the media.

  Even the broadcast media, which is more expensive to run and operate is facing serious challenges and again if they are not supported we will have a situation where only those who can afford these services will have access to them. As we go into the stage of digitisation which means there will be no free to air programmes anymore only those who can afford to subscribe will have access, and you’re going to cut off large portions of people from access to information.
Unfortunately, our media communities are also not flagging these issues for discussion so that we can work towards solutions that are viable.

Is there a way that journalism can be professionalised in the country so that it will no longer be a question of whoever can read and write taking to the internet to become a journalist and publisher?
It can be done but it requires various actors playing different roles and I think the most critical actors in that process are the media owners. Because you cannot legislate that somebody must have a certain level of education before exercising their right to freedom of expression, but as a media owner, you can say that if you don’t have a training in journalism, I will not employ you to come and work in my newspaper, radio or television, whatever it is. It is within your right as a media owner to want properly trained people to run your media organisations. Unfortunately, many media owners are looking for cheap labour so they will not necessarily look for trained journalists. They would look for anybody provided the person can write.

  There are many who went to university but didn’t read journalism and suddenly they end up in journalism. They don’t have any Journalism training which comes with a training about code of ethics and ethical issues, which is what helps the individual to become a professional. There have been proposals that an organisation or institution like the Nigeria Institute of Journalism (NIJ), can be a clearing house for people who have training in other areas to spend at least one year and acquire the journalism knowledge and skills before they start working in the media house and I think that’s the best approach, but you cannot legislate that because by the time you start to say ‘if you don’t go to NIJ you can’t practice joirnalism or if you don’t have a degree in Mass Communication or journalism you can’t practice’ it would be an infringement on their rights. After all, there are those who study Mass Communication but go into advertising, Public Relations and others. So all these have to be sorted through.

 I think that the NUJ has taken a wrong approach in trying to deal with this issue and I have said this to successive leaders of the NUJ, because they tend to favour legislation because they say they want to rid the profession of quacks. But I say, ‘why do you have quacks in the profession’? It is corruption, because at the end of a press conference if people are distributing money, I want to share in that money but if there is no money to be distributed, nobody will come and pretend that he/she is a journalist to cover a press conference, for what gain? The reason the profession is attractive to quacks is the corruption in the profession. If you deal with the corruption in the profession there will be no quacks in the journalism. It’s not an attractive profession to say ‘I will use it to make money legitimately if it is not bribes and extortion.

 Unfortunately, the professionals are not addressing these issues and that’s a serious problem. Unless we sort out the corruption in the media, we are not going to be able to have professional media and it’s also going to affect the reputation of the industry. When I do advocacy around these issues and I’m talking to policy makers, one thing they all say is that every story in the paper is paid for, which is an exergeration, it’s not true, but we also have to admit that the corruption has become so widespread that many people tend to want to believe that every story is paid for.

  As a community of professionals, we’ve got to respond to and address those issues and be hard on our members who drag the name of the profession through the mud. If we can do that, then we clean up the profession and the quacks will disappear. They will go and start pretending to be other things and leave journalism alone. You can say to every news maker, if you share money at a press comference or any other event, we report you to anti-corruption and law enforcement agencies because you are corrupting our members and if you do it a few times, it will stop, people will be scared to bring out money at such events. There may be some who will say ‘come and see me later,’ but it will contain the problem.

With all you have said and what you have seen, where do you see the profession say in the next five years?
I think that the profession needs to regulate itself. We are beginning to see the negative consequences of social media. Increasingly, people are looking for reliable information because all the decisions that we are all making in life, whether on a personal level, professional level, political level, business level, we need reliable information. If you are making decisions on the basis of information that is false or not reliable, you can ruin yourself. You can even end up dead because you are acting on wrong information.
Once we recognise that, people will begin to move towards those sources of information that are reliable. We all want reliable information at the end of the day. So if the profession regulates itself you can give validation, badge of honour, badge of professionalism, however, you want to do it to media houses that are complying with certain professional standards and then you see that because of that respectability that they have, people will lean towards them in search of reliable information and when you are just doing your quack journalism, for a while you might get large audiences out of sensationalism and all of that, but they will find out that you are not reliable and they will move away and that media house will die.

  It will become a self selecting process. After a while, only those that are reliable and trusted would survive. Those that are not reliable, even though the owners may have an endless amount of money to keep pumping into them, people will still know they are not reliable and they will not depend on them for information.

  It’s not everybody that will necessarily be on board from the beginning if we say we want to sanitise the profession. There will be some that it is not in their interest to sanitise. There are some that are main stream media but they create the environment for corruption. When you are mainstream media organisation and you are not paying your staff salaries, you’re creating the environment for corruption because they will survive somehow and they have this instrument that they can use and people tend to sympathetic when you say ‘I have not been paid for six months or one year.’ But if you eliminate that, there will be no room for stories of I’ve not been paid or my salary is too poor and there will be no sympathy for those who cook up such stories.

  We can also start to really talk to each other not to drag the profession to the mud. It’s just like somebody rubbishing your name, you will not ignore that kind of thing. You belong to a profession where you are ashamed to stand up in certain places because people look down on you whereas if you look at some countries like the US, for instance, and some reporters that work for the big media, there’s no Head of State that is not falling over him or herself to talk to them even when they are interviewing them so harshly they sit down there and take it because those are respected professionals. We can also insist that we would not allow other colleagues to damage our reputation so much that we don’t have an image that we can be proud of.

 We can each police each other and that’s what you have in the American system. They don’t have Press Council or Ombudsman. They hold each other accountable. If you mess up they call you out. I think we can have a combination of that but here you find that media houses don’t criticise each other. Even when you know that this media house is owing salaries, you keep quiet. If they even go to court, others don’t cover it. We have to move away from that because they are tarnishing the reputation of everybody. If you’re a media organisation that is paying salary and some are not paying, you have to call them out. If you belong to Newspaper Proprietors, at your meeting you raise the issue.

 I also advocate that media owners be forced to develop a code of conduct for media owners where they don’t interfere in editorial decisions. That is the work of professional journalists and editors. That you have set up the business doesn’t mean you should come and be dictating how news should be written. If we have a Code of Conduct for media owners it could be enforced by NPAN and BON. The NUJ can also set up a team or body, however, they choose to, where the strategy would be to sue any media house owing salaries and ask the court to declare them bankrupt. We have tried it at MRA and it worked. If a company is declared bankrupt, it is taken over from the owner and any money made thereafter is used to be pay off creditors. But no business man wants to be declared bankrupt because once that happens, the person cannot hold any political office. The NUJ is a professional body whose responsibility it is to represent her members. Once you file for bankruptcy against any media house, the money will come out and they will pay the salaries. Certainly, no media house wants to be wound up.