Legal analysis

Uganda: Communications Regulatory Authority Bill

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ARTICLE 19

18 Apr 2012

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In March 2012, the Government of Uganda tabled the Communications Regulatory Authority Bill, 2012 (the Bill), a major piece of legislation intended to consolidate and harmonise two existing and overlapping laws  – the Uganda Communications Act and the Electronic Media Act  – and merge the regulators they establish into a single Communications Regulatory Authority (the Authority). The resulting Bill principally covers broadcasting, telecommunications and postal services, but takes in cinemas and video libraries as well.

ARTICLE 19 welcomes the initiative to create a more coherent legal framework governing these sectors. Moreover, the Bill contains a number of positive features. It places significant emphasis on making communications services widely available at affordable rates, and proposes innovative funding arrangements for the Authority, which will minimise its reliance on funding allocated by Parliament – thus potentially enhancing its independence.

At the same time, the Bill is out of step with international standards in many and significant ways. Most notably, with the exception of the funding arrangements, it fails to provide any credible safeguards of the Authority’s independence from the Government. The powers of the Minister responsible for information and communications technology (ICT Minister) over the Authority will include approving its budget, appointing and dismissing members of its Board, and issuing binding guidelines to them. The Minister will even be able to recommend removal of judges on the Communications Tribunal appointed to hear complaints against, amongst others, the Minister.

  • The guarantee of the Authority’s independence found in Clause 7 should be further elaborated. In particular, the Authority’s Board and staff should be required at all times to operate in an independent and impartial manner, while external persons and entities should be prohibited from improperly influencing or interfering with the Authority’s work.  
  • Clause 6, which permits the ICT Minister to issue binding “policy guidelines” to the Authority, should be removed.
  • The Authority should be bound comply with international human rights treaties and agreements entered into by Uganda. Consideration should be given to binding it in addition to the standards set out in the Declaration of Principles on Freedom of Expression in Africa.
  • Promoting freedom of expression and the free flow of information and ideas should be central objectives of the Bill and the Authority’s activities, expressly recognised as such in Clauses 2 and 4.
  • Beyond a requirement to promote a wide variety of programmes, the Authority should be required to ensure that those programmes reflect and serve society as a whole, including vulnerable or marginalised groups, by providing access to a wide range of information and viewpoints in a wide range of languages.
  • In addition to safeguarding competition, the Authority should be required to ensure pluralism of broadcasting organisations and of ownership of those organisations.
  • The ICT Minister and Cabinet should play no role in the selection of members of the Authority’s Board. Nominations should be solicited from civil society, professional organisations or the public at large, and appointments should be made by Parliament in a manner that ensures broad cross-party support, after an open process allowing for public comment. The Authority’s Director-General should be appointed and as necessary removed by the Board.
  • The NCC’s membership should, as far as possible, represent a broad cross-section of Ugandan society.
  • Consideration should be given to increasing the term of the Authority Board members to more than three years, and staggering the terms. Consideration should also be given to increasing or decreasing the number of members to an uneven number.
  • Persons who are employed in the civil service or other branches of government, who hold an elected or appointed position in government, or who hold an official office in, or are an employee of a political party should be ineligible for appointment to the Board of the Authority.
  • Persons who have been convicted of a serious crime or a crime involving dishonesty should also be ineligible to serve, unless a substantial period of time has passed since the conviction.
  • Removals from the Authority’s Board should be decided on by the same body that appoints its members, such as a cross-party committee of Parliament, and should be subject to judicial review.
  • The remuneration and allowances of the Authority’s Board members should be set by Parliament, without any discretion in relation to individual members, or should be set in a fixed proportion to some other measure, such as the salary paid to ministers.
  • The Authority should be made responsible for the development, in an open and participatory manner, of a frequency plan for those frequencies allocated for broadcasting. The plan should ensure that the available frequencies are shared equitably and in the public interest among the three tiers of broadcasting (public, commercial and community), the two types of broadcasters (radio and television) and broadcasters of different geographic reach (national, regional and local).
  • Clauses 25(2) and 40(2) of the Bill should be consolidated into one provision setting out the criteria by which applications for licences shall be judged.
  • Rather than requiring the individual applicant for a licence to be of sound financial standing, the Authority should enquire whether the proposed service is adequately resourced.
  • Political parties should be ineligible for a broadcasting licence.
  • Additional criteria for deciding on a licence application should be whether the proposed service:
    • contributes to the realisation of the frequency plan;
    • promotes the availability of a wide range of viewpoints;
    • contributes to diversity of media ownership.
  • Clause 25(2)(d) of the Bill should be deleted: “social, cultural and economic values” is too vague and broad as a selection criterion.
  • High-value frequencies should be awarded through a properly announced tender procedure, while licenses for frequencies in underserved areas and for community broadcasting should be made available on a rolling basis.
  • The Authority should be prohibited from imposing any licence condition that does not serve the objectives of the Bill. A schedule should be set out in advance establishing the duration and cost of different types of broadcasting licences.
  • Parliament, rather than the ICT Minister, should be responsible for approving the Authority’s budget and any loans, grants, gifts and donations it wishes to accept.
  • Parliamentary scrutiny of the Authority’s budget should be retrospective, not prospective.
  • The Authority should be required to submit an annual report on its activities, including its audited accounts, to Parliament and to publish this report online. It should not be required to submit any reports to the ICT Minister.
  • The Authority’s meetings and documents should in principle be accessible to the public, and it should organise public consultations prior to adopting major decisions or policies.
  • Persons licensed by the Authority should not be required to register with the Media Council.
  • The registration requirement for television sets and the licensing requirement for cinemas and video or film libraries found in Clauses 33 and 39 respectively are unnecessary and should be removed.
  • Clauses 29(a) and 32 of the Bill, requiring broadcasters to respect “public morality” and “ethical broadcasting standards”, are too vague and should be deleted. Clause 31 should be amended to state that the Authority may develop minimum broadcasting standards in consultation with licensed broadcasters and the public at large.
  • The Bill should stipulate that the Authority will not enforce any content rules on a subject where the broadcasting sector has implemented an effective system of self-regulation.
  • Any person resident in Uganda should be permitted to complain to the Authority about broadcast content.
  • The ICT Minister should not have the authority to compel an investigation by the Authority; Clauses 53(2) and 54(2) of the Bill should be deleted.
  • A warrant issued by a Magistrate should be required for searches of broadcasters’ premises as well as private dwellings. The Bill should state that no warrant may be issued where a search has as its goal or likely consequence that the identity of a confidential source for a news story will be disclosed.
  • The provisions on the application of sanctions in case of breach of licence conditions should be reviewed for consistency and readability. It should be made explicit that sanctions will be applied in a graduated fashion, starting with a warning or fine, with suspension or revocation of the licence reserved for very serious cases, or where other remedies have had insufficient effect.
  • Licence holders should be guaranteed the right to make representation any time a complaint against them is investigated.
  • Involvement in “treasonable offences” is too vague a ground for licence suspension or revocation and should be removed from the Bill.
  • Part XI of the Bill should be deleted. There is no need for a dedicated Communications Tribunal. Cases arising from the Bill can be heard by the High Court, which could set up a specialised chamber as necessary. Alternatively, a significant overhaul is necessary to ensure the ICT Minister, and the Government more generally, have no powers that can be used to improperly influence the Tribunal.
 

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