In July 2015, ARTICLE 19 analysed the Draft National Communication Act of Somalia (version dated of 15 May 2014) for its compliance with international freedom of expression standards.
The analysis builds on the earlier analysis of previous version of the Draft Act. ARTICLE 19 appreciates the willingness of the Somali Government to adopt some of our previous comments in this Draft Act. We also find that the Draft Act represents a comprehensive effort to lay the ground for the regulation of both the telecommunication industry and the broadcasting sector in the country.
However, ARTICLE 19 maintains a number of concerns about several provisions of the Draft Act. Our main concerns relate to the independence of the projected National Communication Commission (NCC), the protection of pluralism, and the broad, vague wording of a number of restrictions on freedom of expression. In this respect, there are major flaws in the Draft Act which need to be corrected in order to bring it into line with international standards on freedom of expression and information.
ARTICLE 19 hopes that the Somali Government will consider our recommendations, and will incorporate them into the final version of the Draft Act. We also call on civil society and other stakeholders to advocate for the most progressive legislation in this important area, and to ensure that regulation of the communications sector fully complies with international freedom of expression standards.
Key recommendations
1. An unambiguous adherence to international freedom of expression standards should be inserted in the beginning of the Act (at Article 2, Article 6, or in a new provision); the Act should explicitly confirm that all powers of the public authorities and the NCC shall be exercised in conformity with international freedom of expression standards;
2. Vague, overbroad terms should be eliminated from the Act; the reference to religious law should be removed from the Act;
3. The Act should clearly provide for the independence from state, political and commercial influence of the NCC. In particular:
• The NCC should be removed from the management of the Minister for Communications and no member of the NCC Board should come from the Ministry for Communications;
• The nominations of the NCC Board should be solicited from the public at large, including from civil society and professional organisation;
• The processes of nomination and appointment of the NCC Board should be transparent and open to public participation;
• The appointments for the NCC Board should be made by a qualified majority vote of the plenary Parliament or of a cross-party committee;
• The procedure for the removal of a Board member of the NCC should be fully described in the Act and comply with fair trial requirements under international law;
• The NCC should be guaranteed to receive a sufficient and foreseeable level of funding in order to be able to fulfil its missions;
• The Act should specify that any grant or any other source of income should not give rise to conflicts of interest and that, if they do, they should not be accepted before an independent panel has examined the issue of the possible threat to the independence of the regulatory authority.
• The Act should provide that no grants or any other income from one private donor should not constitute more than a given percentage of the global budget of the NCC (for instance, 10 %).
• The conflict of interest rules for the NCC should explicitly exclude professions, positions and financial interests related to the sectors of broadcasting and telecommunications, as well as employees of political parties and civil servants.
4. There should be a legal duty for the NCC to write and publish its comprehensive annual report;
5. The Act should make the promotion of diversity and also the availability of a wide range of information and ideas explicit objectives of broadcast regulation by the NCC. Diversity should be defined as including pluralism of broadcasting organisations, of ownership of those organisations, and of voices, viewpoints and languages within broadcast programming as a whole.
6. The Act should describe with detailed precision the procedures that apply to decision-making by the NCC.
7. The Act should include general principles relating to the rules on allocation of licences, interconnection, or any other matter where the NCC is given the power to issue rules, in order to describe the general framework that constraints the power of the NCC to decree rules. In that sense, the characteristics and duration of the different types of licences should be fixed in the law.
8. The Frequency Allocation Table should be developed in an open and participatory manner, and designed in order to maximise pluralism and diversity. It should be developed with the view of allocating frequencies for broadcasters among the three tiers of broadcasting (public, commercial, community), the two types of broadcasters (radio and television), and the geographical reach (national, regional and local);
9. The legislators should ensure consistency of the Act with other legislation;
10. The mandatory registration of all SIM cards should be abolished.