In April 2018, ARTICLE 19 reviewed the Draft Media Law of Somalia, which was approved by the Council of Ministers on 13 July 2017.
Our analysis shows that, like the media law which is already in place, the draft contains some positive provisions, but overall is quite control-oriented. It imposes licensing and registration procedures on all media outlets, to be overseen by the Ministry of Information (‘the Ministry’). Furthermore, it envisages the creation of an ‘independent’ Somali Press Commission – though in reality this would be quite firmly under the control of the Ministry – whose powers will include sanctioning media professionals for violations of a code of conduct.
Journalists will also have to comply with numerous, and often vaguely-worded, content restrictions. A bright spot is the Draft Law’s section on public service broadcasting which, though limited in scope, lays foundations for regulation in line with international best practice in this field.
ARTICLE 19 urges the Somali authorities to consider the recommendations below, which would help align the Draft Law more closely with international law and best practice.
Summary of recommendations
Definitions:
- Article 1 should be reviewed to eliminate redundant definitions and add missing ones;
- The definition of “electronic media” should be revised;
- To the extent they are retained, the definitions of “print media” and “print press” should be restricted in scope to mass circulation periodical publications;
- The definitions of “journalist” and “publisher” should be revised. In no case should these include the requirements to be authorised or licenced;
Principles and objectives:
- Article 3.1 should be reworked into a proper statement of the right to freedom of the media, including the right of every person to seek, receive and impart information through the media;
- It should be made clear, in Article 3.2, that public authorities and courts are required to implement and interpret the Media Law in conformity with Article 18 of the Provisional Constitution and human rights treaties to which Somalia is a party;
- Article 3.3 should ban prior censorship unconditionally, and not only as long as the media “perform their duties;”
- It should be forbidden in all circumstances to force a media outlet to broadcast any report, irrespective of the content or purpose of that report. Article 3.4 should be amended to this effect;
- Consideration should be given to deleting Article 6, which serves no real purpose;
- The objective of promoting “diversity of the media” in Article 7 could be further elaborated, explaining that diversity includes pluralism of media organisations, of ownership of those organisations, and of voices, viewpoints and languages represented within the media;
Licensing, registration and taxation of media outlets
- The requirement for media outlets to obtain a licence is illegitimate with respect to print and online media, and unnecessary with regard to broadcast media, which already require a licence under the National Communications Act. References to this requirement should be removed from the Draft Law, notably from Articles 6, 8-13 and 20-22;
- The requirement for media outlets to register should also be removed from the Draft Law. If it is retained, the Draft Law should state clearly that registration cannot be refused. The information required for registration should not include irrelevant details such as private addresses or educational qualifications, and consideration should be given to putting the Somali Press Commission in charge of the registration process;
- Failure to register should attract, at most, a minor administrative fine. The draconian penalties outlined in Article 26 should be removed;
- Article 23.1, requiring all media to show their address and the names of the director and editor on content they disseminate, is unnecessary and should be deleted;
- Media outlets should not be required to pay registration and licence fees over and above their tax burden under ordinary tax law, and the licence fees for broadcasters under the National Communications Act. Articles 16.2 and 17.1 should be deleted;
Media professionals
- Consideration should be given to allowing professional bodies such as the National Union of Somali Journalists to issue journalist ID cards on a self-regulatory basis;
The Somali Press Commission
- The Somali Press Commission’s independence should be enhanced by limiting the government’s role in appointing its members, extending the duration of members’ term, and making the Federal Parliament responsible for approving its budget;
- The Somali Press Commission should not have powers to reward or discipline journalists, to recommend the granting or withdrawal of licences or to draw up a code of conduct. This should be left to self-regulation by the press. Articles 15.4, 15.5, and 25.2 should be amended in this regard;
- Media owners, administrators, journalists and editors should not be ineligible to serve on the Somali Press Commission;
Content regulation
- All content restrictions should be deleted from the Draft Law. Instead, content issues should be regulated through laws of general application like the criminal and civil codes;
- At a minimum, overbroad and vague prohibitions such as making “false reports”, spreading “baseless propaganda;” “violating the Islamic religion,” and “violating sound Somali culture” should be removed;
- Consideration should be given to replacing expressions such as “encouraging tribalism” and “broadcasting hatred and extremism” with the wording of Article 20(2) of the International Covenant on Civil and Political Rights.