License to Censor: The use of media regulation to restrict press freedom - Uganda

Population: 33,800,000
Press Freedom Status: Partly Free
Licensing for print outlets: No
Licensing of journalists: Yes
Independent Regulatory Body(s): No

Introduction

Since the mid-1990s, Uganda has boasted a diverse and vibrant media sector, with dozens of print and broadcast outlets in operation. Most print outlets are privately owned, and the widely circulated New Vision newspaper, in which the state holds a majority ownership stake, contains generally balanced coverage. Ownership in the radio sector, which has the widest reach, particularly in the rural areas, is more opaque, with a significant proportion of outlets controlled by political actors or their close associates. Physical and verbal harassment of individual journalists occurs occasionally. However, the primary threat to media freedom in recent years has been the use of restrictive laws and regulatory frameworks to harass individual journalists and shutter media outlets. Although the 1995 constitution contains provisions protecting freedom of expression and of the press, several clauses of the penal code – particularly those covering sedition, criminal libel, and "promoting sectarianism" – as well as the 2002 Anti-Terrorism Act limit these rights in practice. In 2010, following the July bombings by suspected Somali terrorists that killed dozens of civilians in the capital, Kampala, the Regulation of Interception of Communications Act was passed hastily by parliament and entered into law shortly thereafter. Though the law weakens journalists' ability to protect sources, its final version does stipulate that officials are allowed to intercept communications only after receiving consent from a high court judge. In August 2010, a district court issued an injunction prohibiting all print and broadcast media outlets from discussing the police investigation into the July bombings.²⁰⁷ This attempt to stifle reporting was ignored by many major media outlets, but, combined with other laws and legal restrictions, it has served to provide a chilling effect on unfettered coverage of key political and security issues. Meanwhile, other aspects of the legal framework serve to regulate the sector as a whole and to punish media outlets.

Individual journalists who engage in critical or investigative reporting, particularly concerning the government, have been questioned and investigated, and in the past few years, several dozen have been charged under many of these various laws. Some, such as Andrew Mwenda, a leading journalist, faced a number of separate charges.²⁰⁸ In other instances, interrogation and the threat of potential legal action has served to foster self-censorship. The resolution of many legal cases had stalled due to a challenge to the sedition law brought by Mwenda and the East African Media Institute; they jointly filed a constitutional review petition in 2005. In a positive step, the Constitutional Court in August 2010 ruled in the Mwenda case that the sedition provisions – which criminalize statements that aim to bring "hatred, contempt, or disaffection against the president, the government, or the judiciary" – were unconstitutional and nullified the relevant provisions of the penal code.²⁰⁹ Other legal challenges to the constitutionality of criminal libel and of the powers of the Broadcasting Council are pending. Meanwhile, in June 2011 the Kampala Magistrate Court charged online editor Timothy Kalyegira with criminal libel against the president.²¹⁰ The relative independence shown by the higher judiciary in cases concerning the constitutionality of restrictions on freedom of expression is encouraging – for example, in a 2004 judgment, the Supreme Court annulled the provision in the penal code concerning publishing "false news" as unconstitutional. However, the government has announced its intention to challenge the court's decision on sedition, and a number of other cases against journalists have remained open pending a final resolution of the sedition case. In May 2011, President Yoweri Museveni announced a proposed amendment to the constitution that could potentially threaten journalists who cover protests because of its "economic sabotage" provision. Press freedom organizations are concerned that this amendment could be used against journalists based on the argument that they are "scaring off tourists and investors."²¹¹ The amendment has not passed as of mid-2011.

Laws Relating to the Regulatory Framework

Currently, regulation of the media sector is governed by several pieces of legislation enacted during the mid-1990s. The Press and Journalist Act (PJA) – first passed in 1995 and updated in 2000 – created the National Institute of Journalists of Uganda (NIJU), a government-affiliated body where all individual journalists must be registered. The PJA also established a statutory Media Council that is responsible for licensing journalists; addressing complaints against the media and arbitrating disputes, including recommending disciplinary action against journalists or publishers (such as admonishing or suspending journalists, or requiring a media company to pay damages); and censoring audio-visual material. Journalists are required to have a university degree in journalism, or a university degree in any other field plus a professional qualification in journalism or mass communication in order to be full members of the NIJU. Journalists enrolled with the NIJU as either full or associate (who may not necessarily have a degree) members are supposed to renew their licenses annually in order to operate without fear of criminal charges, although this stipulation is often overlooked in practice. The Media Council is also empowered to handle the accreditation of foreign journalists and local freelancers who work for foreign media outlets.²¹² Currently, apart from a simple registration process, licensing for print outlets is not legally required.

Amendments to the PJA proposed in January 2010 would require annual licensing for all print media outlets; give broader authority to the Media Council to withdraw or refuse licenses on broadly defined conditions of undermining "national security, stability, or unity," or Uganda's foreign relations or economy; and increase the powers of the minister of information over the Media Council. The proposals have met with criticism from both local and international press freedom watchdogs due to the onerous licensing process, as well as the broadly worded nature of the conditions attached to license renewals.²¹³ The amendments have not yet been presented in parliament.

Broadcast media are subject to regulation by the Electronic Media Act (originally passed in 1996 and updated in 2000), under which a 12-member Broadcasting Council (BC) grants licenses, which must be renewed annually; arbitrates disputes arising from complaints brought by the public; and enforces broadly defined "minimum broadcasting standards" concerning public morality or the promotion of violence or ethnic hatred. By law, the BC has broad powers to grant or withhold licenses on the basis of an opaque set of conditions, as well as the power to seize and confiscate transmissions equipment without a hearing or other form of due process. The council operates under the explicit direction of the minister of information, and all council members are appointed directly by the minister. While some represent the government, others represent constituencies such as broadcasters, the law society, or the general public, and the minister is supposed to consult with these industry and civic associations when making appointments. In 1997, the Uganda Communications Act established the Uganda Communications Commission (UCC), another regulatory body primarily tasked with allocating and licensing radio frequencies. In April 2010, it was announced that the UCC would merge with the BC; the current chairperson of the BC would lead the process.²¹⁴ This merger created a body to oversee all types of communication and broadcasting in Uganda.

Other bodies that are involved in media regulation include the Media Centre, established in 2005, which ostensibly provides official information to the press. However, in recent years the Media Centre has occasionally taken on some duties of the Media Council, including accrediting journalists prior to the 2006 elections, as well as restricting the movements of some journalists.²¹⁵ As a result, a number of journalists, particularly foreign ones, found it harder to get accreditation during the election period. In the longer term, the establishment of the centre further weakened the role of the Media Council. In addition, a Media Crimes Department within the police force investigates alleged crimes committed via the media by summoning and questioning journalists and forwarding selected cases to the public prosecutor.

Impact of Regulation on Media Freedom

The regulatory framework in Uganda impedes media freedom due to outright government control over the appointments and licensing process, as well as decisions by officials to shut down outlets without regard for due process. At the outset, the independence of such regulatory bodies is neither provided for by the relevant laws, nor adhered to in practice. With regard to appointments, Media Council members are formally appointed by the minister of information on the recommendation of different groups of stakeholders, including the government but also civil society, journalists, and the print and electronic media sectors. Some appointees are seen as more progovernment while some have a relatively more independent stance. However, the Media Council Secretariat is housed within the Prime Minister's Office and its sources of funding are inadequate, leaving it scant resources to perform its mandate effectively.²¹⁶ The council is seen as weak and not entirely functional by civil society and industry groups, who also note that at least some of its functions, such as accrediting foreign journalists, seem to have been usurped by the aforementioned Media Centre. At the BC, council members are directly appointed by the information minister after consulting with the relevant industry and civic groups, ensuring a high level of official control over the body. Apart from government officials, members include representatives of radio and television stations, cinema operators, the general public, and a lawyer. The BC is funded by government grants and a percentage of the permit and license fees.²¹⁷

As a result of the government's control over the appointments process, decisions regarding licensing are seen to be biased. Particularly in the countryside, a majority of the newer radio stations are owned by politicians and others close to the ruling party.²¹⁸ Participants in the panel for the 2008 IREX Media Sustainability Index noted that in the area of Kinkinzi, an opposition politician was denied a license to open a radio station, while his rival, a cabinet minister, was granted one.²¹⁹ Representatives of one major print outlet noted that they had applied for a radio license several times, but had yet to receive a response from the BC. Other aspects of the licensing process place additional administrative and financial burdens on media owners. The requirement for annual renewals of the license is very short given the paperwork involved, and high licensing fees – three million shillings ($1,275) for a radio station and five million shillings ($2,125) for a television station in Kampala, and slightly less for stations located upcountry depending on their distance from an urban center – place undue financial constraints on broadcast media outlets, many of which need to invest significant capital in order to operate.

In addition to concerns regarding the licensing process, the regulatory bodies also actively interfere in the operation of private radio broadcasting. For example, during the February 2006 elections, which were the first multiparty elections in recent Ugandan history, the website and KFM radio station belonging to the private Monitor group were threatened with closure for their attempts to provide independent election results. Other stations have been threatened with closure for coverage of sensitive events, such as the trial of opposition leader Kizza Besigye in 2006. In terms of the BC, it is standard procedure after receiving a complaint regarding content for the council to request a copy of the relevant recordings from the station involved and then to hold a hearing to determine if the complaint has merit before taking further action. However, as noted below, these procedures are not always followed, and in certain cases decisions are taken based on pressures from the administration rather than an active complaint. On occasion, the BC will itself issue informal guidance on coverage, for example on the broadcast of certain key events that the government would like publicized. At the local level, pressure from local-level politicians and administrators such as the resident district commissioners (RDCs) – whose actions are sanctioned at a higher level – can lead to informal regulation of content. For example, in September 2010, the minister of information commented that RDCs are allowed to "vet" guests on radio talk shows, ostensibly for security purposes.²²⁰ In June 2011, two radio journalists were questioned by the Special Investigation Unit for hosting an opposition leader on their show.

In recent years, a number of broadcast licenses have been suspended, often on vague grounds such as failure to comply with "minimum broadcasting standards." One of the widest crackdowns on broadcast stations occurred in mid-September 2009, when the government closed four radio stations and banned live debate programs after violent clashes broke out in Kampala between supporters of the king of Buganda, Uganda's most populous region, and central government security forces. The BC accused the Buganda kingdom-owned Central Broadcasting Service (CBS), Ssuubi FM, Radio Two, and the Catholic Church's Radio Sapientia of promoting sectarianism and inciting violence in which around 30 people were killed, most of them by security forces. However, the closures took place without warning on the basis of an "emergency" decision by the chair of the BC, and letters sent to some stations after the seizure of equipment did not provide specific examples of the stations' alleged violations but mentioned broadly worded breaches of "minimum broadcast standards."²²¹ The BC also suspended the popular ebimeeza, live open-air talk shows that are broadcasted by radio stations, on the grounds that speakers and content could not be sufficiently regulated. The ban on live debate programs has remained in place indefinitely, and two of the radio stations, Radio Sapientia and Radio Two, reopened under instructions to practice "self-constraint." They had also been forced to dismiss certain staff and refrain from inviting certain guests to appear on political or talk shows. Ssuubi FM decided of its own accord to change its programming and approach in order to be allowed to reopen in January 2010, including removing overtly political shows from its lineup and terminating several staff.²²² CBS, which had previously been sanctioned on other occasions by the BC, had its license permanently withdrawn and remained closed for more than a year. Government officials, including the president, made comments indicating that CBS had been closed because of its antigovernment stance and would have to meet certain stringent conditions in order to reopen.²²³ In August 2010, the High Court issued a decision in favor of CBS in a countersuit brought by the government in response to a case brought by more than 100 station employees, who had sued to get the station reopened on the grounds that they had been put out of work; they were also seeking compensation for their loss of employment.²²⁴ In late October 2010, the two CBS stations reopened "on political grounds" after receiving their impounded transmitter from the Information and Communication Technology Ministry, but without receiving a formal license; discussions to renegotiate the terms of their license with the BC are ongoing.²²⁵ Less than two months later, in December 2010, the BC blocked CBS radio from broadcasting speeches at a conference organized by the Buganda kingdom, arguing that the content violated the ban on ebimeeza programs and that the station had failed to inform the council in advance regarding the content and the speakers at the conference.²²⁶

Outside the broadcasting realm, the UCC also blocked SMS services for election monitoring during the February 2011 elections because of their likelihood to "promote hatred and create discomfort among the public."²²⁷ The focus on controlling newer forms of information dissemination continued in 2011, particularly during political disturbances and civic action that was ongoing in the spring. For example, in April, after being pressured by the security services, the UCC requested that internet service providers (ISPs) block social networking websites Facebook and Twitter for 24 hours in order to "eliminate the connection and sharing of information that incites the public."²²⁸

Mechanisms to resolve disputes regarding media content are currently weak. Most cases brought against journalists by private individuals or government representatives are taken to the courts – and are frequently brought under criminal provisions in the penal code – because damages can be awarded in the case of a favorable verdict.²²⁹ In 2008 and 2009 a number of complaints were brought to the Media Council on the basis of cases filed by the police; while many were dismissed on procedural grounds, some were adjudicated by the council and settlements were reached out of court. The majority of cases concern Uganda's leading tabloid, Red Pepper, which is known for its sensationalist and exaggerated style of reporting, rather than quality news outlets. However, the Media Council mechanism remains underutilized.

Development of self-regulation by the media sector has been relatively weak, despite some nascent efforts. Major media houses and conglomerates do have in-house codes of ethics that are displayed prominently and staff members receive training on these codes; outlets such as the New Vision and Monitor have also provided notices in print that provide contact information for members of the public who wish to complain about corrupt journalists.²³⁰ Management at several newspapers spoke of disciplinary action where those individuals found guilty of breaching the codes had been penalized or dismissed from their positions.²³¹ The sector as a whole does have a journalism code of ethics that was developed by the Independent Media Council of Uganda (IMCU) and agreed to by all of its members, comprising several dozen media houses and associations, and was launched in December 2008.²³² In practice, some journalists do violate the code, predominantly by engaging in corrupt behavior and accepting money to either publish or kill stories, as well as by sensationalist or knowingly inaccurate reporting.²³³ Those who are caught may face suspension of their association membership or be dismissed from their positions. Thus far, the IMCU complaints mechanism has not yet been used, primarily due to a lack of public awareness regarding the mechanism. The IMCU is also facing a legal challenge from the Media Council regarding its name, which has affected its ability to operate and promote its activities. Additionally, it is hampered by a lack of funding, which limits its ability to raise public awareness about its complaints mechanism and conduct training for council members.²³⁴

Conclusion and Recommendations

Although Ugandan law provides for licensing of journalists, as well as statutory regulation of print media through the Media Council, these provisions are either weakly enforced or nonoperational. However, the proposed amendments to the PJA, if adopted, would impose onerous registration requirements on print outlets as well as expand the powers of the statutory body. The primary broadcasting regulatory body is not independent of the government and has broad powers with regard to licensing and adjudication, and – as seen particularly in the case of the September 2009 shutdowns and the failure to resolve the cases of the closed stations in a timely manner – sometimes makes decisions without due regard for its own procedures. In general, closure of outlets is not used often as a method of control, but the appearance of politicized decision-making regarding such cases is an ongoing concern. More robust efforts toward establishing a viable system of self-regulation for both print and broadcast media could help to counteract the current framework, in which the roles of the various regulatory bodies are not clearly defined and in which established mechanisms do not work effectively in practice.

207 Human Rights Network for Journalists-Uganda (HRNJ-U), "Court blocks media from publicizing information about investigation into bomb blasts," 24 August 2010, accessed at: http://www.ifex.org/uganda/2010/08/24/terrorism_act/

208 Committee to Protect Journalists (CPJ), "Attacks on the Press 2009: Uganda," 16 February 2010, accessed at: http://cpj.org/2010/02/attacks-on-the-press-2009-uganda.php Human Rights Watch (HRW), "A Media Minefield: Increased Threats to Freedom of Expression in Uganda," May 2010, accessed at: http://www.hrw.org/reports/2010/05/02/media-minefield-0

209 HRNJ-U, "Constitutional Court nullifies law on sedition," 25 August 2010, accessed at: http://www.ifex.org/uganda/2010/08/25/sedition_law_null/

210 CPJ, "Ugandan online editor arrested for publishing op-eds," 1 June 2011, accessed at: http://www.cpj.org/2011/06/online-news-editor-arrested-for-publishing-o…

211 Reporters Without Borders (RSF), "President identifies news media as 'enemies' of the state," 24 May 2011, accessed at: http://www.ifex.org/uganda/2011/05/24/museveni_letter/

212 Media Council, "Press Accreditation," 2007, accessed at: http://www.mediacouncil.ug/accreditation.php

213 International Press Institute, "IPI says media bill fails to live up to international press freedom standards," 23 March 2010, accessed at: http://www.ifex.org/uganda/2010/03/25/media_bill_amendment/ Freedom House, "Thirty-one IFEX members and global partners demand retraction of proposed amendment to Press and Journalists Act," 7 September 2010, accessed at: http://www.ifex.org/uganda/2010/09/07/press_journalist_act/

214 HRW, "A Media Minefield," accessed at: http://www.hrw.org/node/90062/section/6

215 HRW, "A Media Minefield," accessed at: http://www.hrw.org/node/90062/section/6

216 Interview with Secretary of Media Council, Kampala, September 2010; Annual Report of the Media Council, May 2009. The majority of its revenues come from collecting accreditation fees from foreign journalists; most local media outlets do not pay the required registration fees.

217 Uganda Legal Information Institute, "Uganda: Laws of Uganda," accessed at: http://www.ulii.org/ug/legis/consol_act/ema1996104151/

218 IREX, "Media Sustainability Index (MSI)-Uganda 2008," accessed at: http://www.irex.org/system/files/2-Africa_08_uganda.pdf http://www.irex.org/system/files/2-Africa_08_uganda.pdf to the IREX MSI 2008, 75 percent of stations are owned by politicians and 75 percent of them belong to the ruling party.

219 MSI 2008, p.386.

220 Emmanuel Mulondo, "RDCs Can Vet Radio Talk Show Guests, Says Minister," The Monitor, 24 September 2010, accessed at: http://allafrica.com/stories/201009240528.html

221 Interview with Chair of the Broadcasting Council, Kampala, September 2010.

222 Interview with staff at Ssuubi FM, Kampala, September 2010, and Robert Mwanje, "Ssuubi FM Back on Air," 12 January 2010, accessed at: http://allafrica.com/stories/201001120844.html

223 FES Media, "Africa Media Barometer (AMB)-Uganda 2010," p.16, accessed at: http://fesmedia.org/uploads/media/AMB_Uganda_2010_English_final.pdf CPJ, "Ugandan station still closed, an ill omen for election," 1 October 2010, accessed at: http://cpj.org/blog/2010/10/ugandan-station-still-closed-an-ill-omen-fo…

224 Lydia Mukisa, "CBS floors government in court battle," 22 August 2010, accessed at: http://www.monitor.co.ug/News/National/-/688334/994198/-/x4hhx4/-/index…

225 HRNJ-U, "Uganda Alert: Two CBS radio stations re-open without a license," 25 October 2010, accessed at: http://hrnjuganda.blogspot.com/2010/10/hrnj-uganda-alert-two-cbs-radio…

226 HRNJ-U, "Government blocks radio stations from live broadcasting Buganda Kingdom conference," 4 January 2011, accessed at: http://www.ifex.org/uganda/2011/01/04/conference_broadcasts_banned/

227 HRNJ-U, "Unwanted Witness, Press Freedom Index Report," April 2011, p.13, accessed at: http://www.ifex.org/uganda/2011/05/05/press_index_report_april_2011.pdf

228 HRNJ-U, "Unwanted Witness," p.15.

229 AMB-Uganda 2010, p.58.

230 AMB-Uganda 2010, p.66.

231 Interviews with executive staff at the Monitor and New Vision, Kampala, September 2010.

232 AMB-Uganda 2010, p.58. The IMCU was formed in 2006 by 42 media associations and outlets. The board's seven-member ethics committee is supposed to handle complaints against the media.

233 MSI 2008, p.387.

234 Interview with head of IMCU, Kampala, September 2010.