ENSURING FREE, FAIR AND PEACEFUL ELECTIONS – THE ROLE AND RESPONSIBILITY OF THE STATE-OWNED MEDIA FROM A CONSTITUTIONAL PERSPECTIVE

Introduction:

1. We are to make a presentation on the constitutional perspective on the role and responsibilities of the state-owned media. But we believe some reference to existing legislation may be necessary to provide a comprehensive and critical understanding of the issues.

2. To a large extent, we do not think there is any radically new view point to be advanced which has not been the subject matter of earlier comment and engagement by the NMC with the state-owned media. This exercise is necessary however because of the times we live in – election campaigns towards the general elections of 2012, and specifically the highly competitive and sometimes fiercely acrimonious nature of the contest between political parties as expressed through the mass media. There is also the alarming experience of the 2008 national elections, when the nation was pushed to the brink by party partisan interests, using and manipulating the mass media for their sectarian goal of capturing political power come what may.

3. Thus the real issue we need to address today is how the state-owned media can in practice and concrete terms live up to its constitutional obligations in the run up to election 2012, the elections themselves and the period immediately following the elections.We therefore think that the focus and substance of our workshop should be on item two, part two of the agenda – discussions of the plans of the four state-owned media.

4. In order however to situate the discussion in its proper context, a few observations/comments on the constitutional architecture that provide the regulatory framework for assessing the different plans, systems and guidelines that our four state-owned media have developed as a reference point for performing their constitutional mandate. Needless to say, such plans, systems, internal regulations and guidelines are necessary:

a) In order to provide an objective basis for the operations of the state-owned media; for such framework provides the board, management and staff generally with clear and consciously formulated principles, criteria, systems and procedures by which they can assess their own performance objectively on a continuing basis.

b) To ensure that the operations and coverage by the state owned media are not left to chance or the personal subjective pre-disposition of individuals and their political biases ; they rather provide the measure and objective criteria by which those who may stray away from the rules, their roles and responsibilities can be brought to order and be sanctioned where necessary without accusations of partisan bias

c) Such formulated framework and procedures equally enable the NMC, which has responsibility for the performance of the state owned media in accordance with the Constitution independently to assess whether these media have adequate systems, regulations and guidelines to carry out their onerous constitutional obligations, and, if not, critically to engage with them over the fault lines and sticking points so as to arrive at a consensus that is in conformity with the constitutional imperatives and principles.

d) Finally, such framework, regulations and procedures enable the good people of Ghana to whom we are all ultimately accountable to assess the arrangements and systems established by the state owned media in the light of the provisions of the Constitution and to monitor whether or not our state owned media are acting in compliance, in the first instance, with their own systems, regulations and procedures and above all with the provisions of the Constitution of the Republic on the role and responsibilities of the media.

Thus, Mr. Chair, while not seeking to anticipate of Item 2, Part 2 of today’s agenda, that will see the S.O.M outline their plans. It needs be emphasized that whatever ideas this presentation may throw up are not likely to be new or provide more than the general typography for the detailed contours, the concrete issues that our workshop must address namely your preparations, plans, systems, regulations and guidelines for covering the 2012 elections in a manner that ensures free, fair and peaceful elections. That really is the meat of our deliberations today.

5. Having said that Mr. Chair, some observations about the constitutional context and regulatory architecture that ought to guide your plans, systems, regulations and procedures.

6. Even a cursory reading of the Constitution on the role and responsibilities of the state owned media highlight a number of fundamental principles:

(i) First, the independence and freedom of the mass media from executive control, interference, direction or influence or of such control or direction by any other political, economic or vested interest – Article 162 (1) and Article 172 of the Constitution.

(ii) Secondly, the imperative for the mass media, generally, including the state-owned media to maintain the highest journalistic standards – Article 162 (2). This means the questions of ethical principles and norms and professional standards ought to be abiding principles by which the mass media especially the state-owned media are to be assessed.

(iii) Thirdly, the state-owned media are publicly owned media and accordingly have a primary obligation to reflect the pluralism and diversity of Ghanaian society in its manifold facets.

a) That is why the Article 163 of the Constitution places a constitutional obligation on the state-owned media “to afford fair opportunities and facilities for the presentation of the divergent views and dissenting opinions”. This, Mr. Chair, is a duty imposed on you the state-owned media by the Constitution. It is not a favour you do the public that may hold views divergent or dissenting from official policy or positions. You must scrupulously comply with this constitutional obligation: You simply have no choice in this matter unless you seek to subvert the Constitution

b) Again, as publicly owned media in a democracy you have an equally fundamental obligation “to uphold the principles, provisions and objectives of the Constitution and ensure the responsibility and accountability of the government of Ghana to the people of Ghana. – difficulties and challenges of ensuring the accountability and responsibility of the government to the people of Ghana: the funding processes of the state-owned media that make them dependent on government for funds they need to perform their functions – The weight/burden of the traditions of the past of the state-owned media when they were subservient to governmental diktat, direction and pervasive influence; this requires courage and an active and conscious effort to break out of that stultifying culture and paradigm to be able to live up to their constitutional obligations of being independent and critical of government and all contending parties in their election reportage. – It equally means that active partisan journalists have no place whatsoever in the state-owned media. While journalists in the state-owned media may legitimately have their political preferences and inclinations as citizens of Ghana. They are not permitted to allow such preferences to distort their reportage and bend the facts and avoid the balance and comprehensiveness that are expected of them. A related matter here has to do with journalists in the state-owned media who go and contest in political party primaries and when they lose return to their media houses with their tails tucked in between their legs. They do no good to the independence and credibility of their media houses and would suggest that the board and management of the state-owned media formulate clear principles to put an end to this aberration. c) It is to be noted that Article 163 which places on the state-owned media the duty to give voice to divergent views and dissenting opinions provides the general constitutional framework and objectives that Article 51 clauses 11 and 12 particularize for political parties and presidential candidates; “Article 51 (11): The state shall provide fair opportunity to all political parties to present their programmes by ensuring equal access to the state-owned media” “Article 51 (12) All presidential candidates shall be given the same amount of time and space on the state-owned media to present their programmes to the people” The meanings and implications of these articles for the roles and responsibilities of the state-owned media and ensuring free and fair elections where elaborated by the Supreme Court in the landmark cases of NPP v. GBC. The words of the Supreme Court so eloquently bespeak the issue that I can do no better than to crave your indulgence to reproduce the majority decision: It held thus: “Article 55(11) of the Constitution, 1992, defined with regard to political parties, both the object of state policy and the means to achieve it. The object was the provision of fair opportunity to all political parties to present their programmes to the public, and the means of achieving that was by ensuring that each party had equal access to the state-owned media. ‘Equal access’ meant the same or identical terms and conditions for gaining entry into the state-owned media for the purpose of presenting their political, economic and social programmes to the electorate and persuading them to vote for them at elections. That meant that the same time or space had to be given to each political party, large or small, on the same terms and the officers of the state-owned media had no discretion in the matter. But in a democracy, the right of the individual to form or join a political party and of the parties to participate in shaping the political will of the people and to disseminate political, economic and social ideas and programmes were not rights which were enjoyed by the people only when elections were to take place. Article 163 of the Constitution, 1992, also set out duties of the state-owned media in promoting free expression of views by obliging the state-owned media to grant fair opportunities and facilities for the presentation of divergent views and dissenting opinions. The word ‘fair’ meant ‘free from bias’ or ‘equal’. Accordingly, the combined effect of Articles 55(11) and 163 of the Constitution, 1992, obliged the management and editors of the state-owned media to be impartial, showing neither affection nor ill-will towards any particular group in the community, be it political, economic or social; their facilities being national assets should be available to all. The state-owned media had no discretion in the matter since that would constitute the exercise of censorship which could block avenues of thought and foreclose the citizens’ right of choice contrary to Article 162 (2) [prohibiting censorship] of the Constitution, 1992. Accordingly, since the defendant (GBC) gave the National Democratic Congress two hours to air its views on the budget, the defendant was required by Articles 55 (11) and I63 of the Constitution, 1992, to grant the plaintiff (NPP) equal time on radio and television to set forth its divergent views” d) There is also the provision of Article 163 (6) which places a constitutional obligation on all media including the state-owned media to publish rejoinders by people in respect of whom they have published matters. 7. The critical function of the mass media in modern democratic politics As we all know the mass media constitute a critical interface between political parties and politicians on the one hand and the electorate in the presentation of the programmes, policies, manifestos, vision and political philosophy of political parties. They are at the same time a mechanism by which the electorate and the population in general make their views heard on public matters and through which the political parties obtain the feedback necessary to re-examine and realign their programmes, policies strategies, and activities. They therefore constitute a veritable sounding box and measuring rod for political parties and politicians. In the result, as we have had the occasion to observe, all political parties and politicians even the most honest and principled would tend to seek undue advantage in their relations with the mass media if you give them the opportunity. For you play a critical role in their electoral fortunes. This Mr. Chair, is particularly so in the case of the state-owned media for obvious reasons. – Their long history of existence and service to Ghanaian society – Their greater national reach – Their perception by large sections of the population especially in the rural communities as a source of credible news and information 8. But today, the state-owned media are in serious competition with independent media, not to talk about the emergence of citizen journalism and new media. The danger then is that if the state-owned media continue to do business in the old, and critical and subservient manner to the powers that be quite apart from subverting the very Constitution that provides the legal basis for their existence, they are likely to lose credibility in the face of the work of alternative media. 9. A few words, Mr. Chair, about what may be said to be some of the defining objectives of election reporting consistent with the provision of the Constitution and which will promote free, fair and peaceful elections. AIM OF ELECTION REPORTING: TO PROMOTE AND DEEPEN OUR DEMOCRACY BY: PROVIDING THE SPACE FOR ● intelligent contest of ideas among competing parties and candidates on the important matters of our living condition: education; health, employment; housing, food, water, industrialization; high yielding agriculture, infrastructural development, environment; and the development of a knowledge-based economy. ● the promotion of tolerance and diversity for that is what, multi=party democracy is all about. ● Equality of citizens, irrespective of ethnic, political, religious, gender or other social difference. ● Giving meaning to the fundamental principle of universal adult suffrage – one man/woman, one vote and thereby ensuring that the will of the sovereign people of Ghana prevails ● Enforcement of the principle of legality and the rule of law by reporting all acts that contravene the electoral law in particular and the laws of Ghana generally. ● The promotion of peace and national cohesion; devoid of discrimination, stigmatizing and stereotyping. ● Empowering citizens through provision of comprehensive, accurate, balanced and relevant information so that they can make independent and informed choices about leaders who are capable, honest and dedicated to the public good, dynamic and transformational;. leaders that have the capacity to take Ghana to new level of development and transformation. In the modern world, the mass media remain the most important and influential interface between politicians and their parties and the electorate. Naturally therefore, politicians being what they are will seek undue advantage for themselves in their relationship with, and access to, the state-owned media, if you permit them. This is more so given the wider, national coverage of the state-owned media. The temptation to seek undue advantage, for themselves or otherwise compromise you in your reportage is even more compelling in an election year. All these considerations make your role in ensuring ethical reportage in the 2012 elections critical for free, fair and peaceful elections. To recap some of the cardinal binding principles that must guide your reportage: Independence and integrity in reportage, devoid of biases, bribes and other inducements. Need to hold government and all political parties accountable to the people Respect for truth and accuracy of facts. – verification and cross-checking, comprehensive system of coverage of election campaign activities. Because of its national spread, the state-owned media are in an especially privileged position to ensure comprehensive coverage and the public expects nothing short of this from them. Constitutional protection from interference. . Avoid sensationalism & exaggeration YOU SHOULD SERVE AS A VEHICLE AND LIGHT FOR PUBLIC ENLIGHTENMENT AND THE WATCHDOG OF THE PUBLIC INTEREST. Fairness and equitable access of political parties and presidential candidates – without bias or prejudices; NPP and NDC not the only political parties or actors; the Constitution’s emphasis is on ALL parties, big or small. The Constitution does not recognize any creature or concept known as ‘dominant political parties. The burden of incumbency– “Presentation of government activities during election year should be weighed carefully to ensure that incumbent government does not gain unfair access to the media. Bona fide news should be covered without giving the impression of bias”. A few words about presidential elections and the vexed question of abuse of incumbency. This is not an easy subject. However, you, as the state-owned media must become acutely aware of the tension that this poses and develop conscious policies and procedures to avoid giving the Executive undue advantage. We have already referred to Article 55 (12) which establishes the constitutional regulatory framework. However, Section 19 of the national Media Commission Act provides that: “the President shall have access to sound or television broadcasting, the press or other media of mass communications or information are funded from public funds for the purpose of broadcast, announcement or publication of a matter which appears to the President to be in the public interest”. This creates a real tension between the fundamental principle securing for all presidential candidates fair and equal time and space in the state-owned media and the right of the President to access of the state-owned media under Section 19 of the National Media Commission Act. The first point to note in this regard that Article 55 (12) takes precedence over section 19 of the NMC Act, so where there is any conflict, Article 55 (12) ought to prevail. Moving forward however, there may be the need to take a second look at the rather loose formulation of Section 19 and review same to make it fit the legitimate purpose for which it may have been intended. HATE SPEECH AND INCITEMENT TO VIOLENCE 10. The particular case of hate speech and incitement to violence, which in recent times has become a major issue threatening the peace and security of our nation, as party political polarization has progressively been heightened in the mass media. Article 12: of the Ghana Constitution which guarantees for every person the fundamental human rights set out in this Constitution subject to the rights of others and the public interest. Article 21 (4) (e) of the Constitution permits the enactment of laws that which prohibit the propagation of doctrine which incites hatred against other groups Article 164 which subjects the media freedom to such laws as are necessary for the protection of national security, public order, public morality and the rights and freedoms of other ARTILCE 20 (2) OF THE INTERNATINAL COVENANT FOR POLITICAL AND CIVIL RIGHTS. – SIGNED AND RATIFIED BY GHANA 7TH SEPTEMBER 2000. It provides as follows: “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited bylaw”. This means that as a signatory state party, Ghana has an obligation under international law to pass laws that prohibit hate speech and incitement to violence. The fundamental rights in issue are: On the one hand the right to freedom of expression and media freedom and independence guaranteed under Articles 21(1) (a) and 162 (1) & (2). On the other there are other these other rights and freedoms. Equality of all persons – Article 17 (1). The right to freedom from discrimination. – Article 17 (2). Right to be treated with dignity and respect, acknowledging our common humanity – Article 15 (1). The right to life and to personal safety – against incitement to violence and hatred – Article 13. And the demands of national security, public order, etc – Article 164. Though the terms “hate speech” is commonly referred to and is the subject of legislation in many a democratic country, there appears to be no universally accepted definition for it. Distilling from the experience world-wide we may say that the term “Hate Speech” for our purposes, shall be understood as covering “all forms of expression which spread, incite, promote or justify racial hatred, xenophobia,or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.” In this sense, “hate speech” covers comments which are necessarily directed against a person or a particular group of persons because of a characteristic common to its members, such as real or perceived ‘race’, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or other similar factors”. It is essentially irrational, discriminatory, intolerant and prejudicial and undermines the foundations of democratic society, the equality of individuals and promotes violence and physical and psychological attacks against individuals and groups because of their. THE RWANDAN GENOCIDE We are all aware of the abominable mass murders and bloodletting that shattered Rwandan society in 1994 when within the short period of some four months over 800,000 to one million Tutsis were massacred only because they were identified as members of that ethnic group. The mass media, controlled by politicians were those that organised, orchestrated and plunged the country into that nightmare through propagating systematically hatred for Tutsis and incitement to violence and to kill them – “KILL THE COCROACHES”. THE KENYAN ETHNIC VIOLENCE One of the Key findings of the Kenya Human Rights report on post-election related violence was that the violence was “largely instigated by politicians throughout the campaigning period and during the violence itself via the use of incitement t hatred” It also found that “the mass media, the short message service in mobile phones and the internet were used to propagate hate speech and in some instances, to incites acts of violence in both pre and post-election period” MANIPULATING ETHNIC PREJUDICES In all such situations, politicians through their control of or influence over the media and alliance with journalists feed on longstanding ethnic prejudices, intolerance and hostilities to mobilise one ethnic group against another. You all have a duty in your reportage to counter any tendency to target, stigmatize, stereotype or profile, on the basis of race,colour, descent, and national or ethnic origin, members of “non-citizen” population groups, especially by politicians, officials, educators and the media, on the Internet and other electronic communications networks and in society at large. But you can only do that if you yourselves are aware, conscious of the implications of the manipulation of such prejudices and actively work to counter them. Unfortunately, as we speak currently, there are no clear laws on our statute books that address these issues. NMC’s initiative. There is urgent need for laws prohibiting hate speech and incitement or violence which is narrowly formulated and consistent with the right to free expression and international human rights norms. Such laws should provide civil and criminal sanctions for hate speech properly defined. We are happy to inform you that the NMC is currently taking initiative to draw up a constitutional instrument addressing the issues of professional standards and the specific question of hate speech and incitement to violence. This will empower the NMC to impose sanctions on media houses and individuals. To conclude Mr. Chairman, for those of you, who a privileged to occupy the unique position of the state-owned media, I would suggest that the most effective way to contribute to free fair and peaceful elections is, in the first place, to internalize in your journalistic DNA the principles developed in the Ethical Codes of the NMC, GJA and GIBA as well as your in-house systems, criteria, procedures and guidelines, and to adhere strictly to them in your reportage. That way your work will contribute to making the media a vehicle for the promotion of truth, public enlightenment, tolerance In our multi-ethnic and multi-cultural diversity as we forge ahead as one nation, It is important to stress that even where you have established clear structures, procedures and guidelines for election reporting in consultation with the political parties and other stakeholders, and have set up committees to monitor and enforce compliance, the Boards themselves have an additional responsibility to ensure that such structures indeed work and that there are sanctions against those who breach these procedures and guidelines.. Thank you for your attention. Akoto Ampaw. 14th September, 2012.

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