On South Sudan Media Laws: Review of Implementation Status, Obligations and Recommendations
By Roger Alfred Yoron, Juba, South Sudan
September 30, 2016 (SSB) — At first, enactments and start of implementations of the laws: The Media Authority Act, The Right of Access to Information Act and The Broadcasting Corporation Act signed by President Salva Kiir Mayardit were welcomed, though with caution, as steps in the right direction to ensuring right of access to information and freedom of expression and the media in South Sudan.
However, to date, the situation on the ground continues to be the same after the three bodies, namely: the ought to be autonomous Media Authority, The Broadcasting Corporation and the independent Information Commission required for implementations of the laws have but all been established partly and to the disappointment of many, failed to live up to the task.
The Acts vs. Implementation
The Media Authority, the Act says is for regulation, development and promotion of an independent and professional media in South Sudan. Section 19 (1) of the Act says: “The Authority shall ensure that media development and press freedoms in South Sudan are consistent with Constitutional and International guarantees of freedom of expression and shall promote public interest in the media sector specifically by” among others, “Amicably resolving legal complaints of defamation, incitement to violence, hate speech and invasion of privacy.”
Further, the Act mandates the Authority to be the regulatory body for the broadcast media and transformation of government and state controlled television and radio into a public broadcasting corporation. On the other hand, section 32 of the SSBC Act gives the Media Authority the power to refer to court grounds it believes to be a breach by the Broadcasting Corporation of obligation specified in the law.
Another relevant provision is section 45 (1) of the Right of Access to Information Act which gives the Appeals Board of the Media Authority the powers to handle pleas filed by complainant (be it individual citizen, public or private body) against a decision of the Information Commissioner on access to information matter. But these provisions and many others remain largely untouched and unimplemented. The Media Authority, and by implication its Board of Directors, all up to date operate with incomplete structures. Two of the Board’s members including the former chairperson Kiir Chol Deng resigned.
Also, none of eight specialized committees and autonomous bodies including the Press and Broadcast Complaints Council, Hearings Panel, Media Appeals Board, Legal Committee, Complaints and Monitoring Committee, Broadcast and Frequency Licensing Committee, Public Affairs and Education Committee, Engineering and Technical Standard Committee required by section 7(6) of the Media Authority Act for implementation of the media laws has been formed.
The former deputy chairperson of the Authority Atong Majok Kur who said she has been “confirmed” the chairperson as of June argues that the body has failed to deliver and form the required committees and autonomous bodies due to lack of budget. On the ground due to the vacuum created by the none full-operation of the Media Authority, and debatably to some extend—lack of general adherence to the rule of law in the Country, the national security continues to unconventionally, arguably illegally and unconstitutionally detain journalists and shutdown media houses.
All these have proven wrong the “it is expected to contribute to a vibrant, independent and pluralistic media in South Sudan, by curbing the increased rate of incidents affecting journalists, end impunity on crimes against journalists as well as create an enabling environment for the media to operate in” comment which UNESCO made early 2016 while welcoming the formation of the Board of Directors of the Media Authority.
“When they were established… it was a hope for the media professionals but to my surprise as a journalist today, the situation has never changed. It is like we are still in the same stage whereby there is no anybody or media regulatory body that is taking care of journalists’ affairs,” A journalist Ayuen Akuot Atem told me in an interview early this month. “We always operate in fear because there is no Media Authority or a Media Regulatory Body that will take care of us and our media houses in case of anything. So we are actually in fear and in fear of uncertainty.”
In 2015, the government threatened to resort to taking journalists to courts for prosecution—something one would welcome as legal, though with some degree of caution. But this too has never seen light of the day either due to the vacuum, government’s lack of trust in the rule of law, fear of the unknown or all the three.
Also the lack of operationalization of the Information Commission, the body established by the Right of Access to information Act continue to restraint the citizen constitutionally and statutorily recognized fundamental freedoms to access information from public or private bodies. The South Sudan’s Right of Access to Information Act which is ranked the 8th best Access to Information law worldwide would have made the country stand proud and tall among the world had the government funded the Information Commission and made it operates within its legal mandate.
The other body, the South Sudan Broadcasting Corporation, established per the SSBC Act has too remain stuck in implementing the its legal mandate of transforming the State owned Media into public broadcasters, independent from political or economic control of the government. Leaders with divergent views like Member of Parliament Onyoti Adigo Nyikwec still maintain that they are not being accorded fair opportunity in the Corporation. “If you see me there… it is something which has been organized by other people, not by us [opposition].
“The TV is still being controlled by the government, even the radio and especially by the minister of information. So it has become property of some people, not the South Sudanese people,” Adigo said early this month. The Chairperson of the Corporation William Haizaza told me in an interview recently that the challenges facing the Corporation in discharge of its duties are of lack of budget, organization structure, and finances.
“We the media are having a lot of problems is because we don’t have guidelines to back up our operations, to give the protection to the journalists and the absence of these codes, conduct of business regulation is really harming the work, profession itself.
“We in the Broadcasting Corporation are supposed to enact our regulations for the Radio and TV and pass it and give copy to the Media Authority, which then they will use it to check on us, because we are a government institution. So this is the task before us but it needs budget, it needs finance. It is not very easy,” Haizaza said.
But this argument has been rebutted by one civil society activist who argued that balancing of news stories, a requirement in the SSBC Act could still be done without the budget.
Improving South Sudan’s Media Freedom Ratings, A Pipe Dream
Reporters without Borders ranked South Sudan as 125th out of 180 countries on its 2015 World Press Freedom Index, 6 positions down from the position the Country held the previous year (2014).UNESCO, for example, was among those who expected that the formation of the Authority help in improving South Sudan’s media freedom ratings. Contrary to that, however, in 2016, in the presence of The Media Authority, the rating worsened: South Sudan has been ranked 140thon the World Press Freedom Index, further 15 positions down from the rating it held in 2015.
Again, in 2015, South Sudan made its first ever appearance on the committee to Protect Journalists global impunity index rating, earning itself the infamous position of second worst in Africa and 5th globally on the impunity ranking, after the killing of seven journalists in the Country in one year alone. Many, including UNESCO hoped and perhaps still expect that the Media Authority will improve South Sudan’s ranking in this year’s impunity index rating anticipated next month. According to reports, in this year, three journalists have been killed: John Gatluak Manguet Nhial was shot dead in an alleged targeted killing, Kamula Duro reportedly died of gunshot wounds he had sustain on the hands and legs — both of them during the July fighting in Juba, and then Isaac Vuni, who the family said was killed and dumped after he was kidnapped in June.
Until November 2015, South Sudan was welcomed for the good gesture it had shown as one of only five countries that accepted to implement The UN Plan of Action on the Safety of Journalists and the Issue of Impunity. That program, together with the Media Authority, have made no practical impact on the ground—to date, regrettably, perpetrators of crimes against journalists (in fact of majority of every victim in South Sudan) remain at large. Therefore, the expectation that the Authority improves the situation for journalists in South Sudan and by effect the Country’s impunity index ratings remain a hope too far from reality, for this year at least, if not for decades to come.
A report of the United Nations High Commissioner for Human Rights on the human rights situation in South Sudan had already caution on the expectations from the Media Authority saying: “With the powers to appoint and remove members of the bodies established by these laws given to the executive, the protection for journalist and media practitioners envisaged by the laws appears to be nominal.”
Observations, Obligations and Recommendations
The Agreement of the Resolution of The Conflict in South Sudan (ARCSS under Chapter 1 Article 14) provides for reforms and reconstitution of The Broadcasting Corporation SSBC “…paying particular attention to the mandate and appointments, to ensure their [the Corporation’s] independence and accountability.” However, there are genuine grounds for all and the government go further than that. Not only reforms and reconstitution of the SSBC should be effected, but actually amendments of all the Three Media Acts to ensure adherence to international best practices, human rights law and full independence from the executive, in terms of, but not limited to budget allocations and procedures for appointment and removal of officials to and from the ought to be autonomous bodies. Section 5 of The Media Authority Act which has shockingly in its final copy assigned defamation criminal definition and all similar laws should be repealed to limit the offence into a civil one.
The non-allocation of budgets by the government to the Media Authority and the Information Commission based on the argument that the bodies have been formed when the country was already in the middle of the Fiscal Year should be urgently addressed.
The structures of the three media bodies should be fully constituted: i.e. the eight specialized committees and autonomous bodies for the Media Authority, and the two positions vacated by two members of its Board of Directors should be established and filled. Also a deputy to the Information Commissioner, the position vacated by Wol Deng Atak, should be duly installed. The issue that one of the Broadcasting Corporation Board Member has been “inactive” for some times should also be rectified. All necessary staffing and establishments for the Corporation required by the SSBC should be made.
Governmental and non-governmental agencies (local and international) supporting freedom of expression and the media should cautiously weight-in and offer limited funding for legitimate activities of the media bodies, so that the defences that they have not been able to deliver their mandates was due to lack of funds are tested, so that proponents of the laws could figure out a next cause of action, if the institutions available conclusively prove that they are not worth their nomenclatures. What should be taken into account is also an establishment of a powerful transparency and accountability mechanisms for management of funds, especially those from NGOs.
It should be taken into account that implementing the laws or an honest attempt to supporting it is not about legitimizing or trying to delegitimize the government. On the contrary, it is due to the fact that the media Acts and relevant laws are not being implemented as they ought, that many continue to be victims for not knowing their fundamental freedom and lacking the clear legal procedures for instituting genuine complaint, if any, against a media house or journalist. It is therefore important that the government and all people of goodwill should be supportive to implementation of these laws.
Also, the National Security should be abiding by its obligations under the law and leave media matters to the Media Authority. Article 159 (3) and 159(4) of the Transitional Constitution of South Sudan respectively enshrines that: “The National Security Service shall be professional and its mandate shall focus on information gathering, analysis and advice to the relevant authorities.” And “The National Security Service shall respect the will of the people, the rule of law, civilian authority, democracy, human rights and fundamental freedoms.” Section 6 of the then National Security Bill which is said to have automatically entered into force also provides that The National Security Service shall “be subject to the Authority of the constitution and the law…and be subordinate to civil authority.”
So, the media regulatory bodies and the courts should be given the space to be developing South Sudan jurisprudence on media matters in order to meet the expectation and exposes the Country will be facing from within and outside in the near future. With time, the argument of being a “young nation” will no more be there. It will also be another unfortunate thing to see those feeling aggrieved start seeking redress from courts outside South Sudan on these very freedoms which South Sudanese had once convince the world they were denied(by successive Sudanese regimes) and were fighting for.
Indeed in South Sudan, the output of journalism has left a lot to be desired: the profession is filled with quacks; individuals with ulterior political, unprofessional motives and approaches (some of which are actually criminal); and too many fresh, inexperienced journalists (which is not something bad as such if the media houses had been rendering them adequate professional training needed for the job, thorough checking and correcting of their work or both).
Also, it cannot be denied that in South Sudan there have been instances where analysts, opposition figures and common citizens freely express(ed) themselves in private media houses, especially radio stations. However, this little aspect of South Sudan’s freedom of expression and the media remain overshadowed by the targeted killing of journalists with impunity, closer of media houses, negative propaganda against the media and the steps the government takes in handling media issues.
Many of the hurdles to the exercise of these freedoms and also many of the bad reputation which continue to hunt the country on the restraint of the same, could be removed if there is a political will and the government starts implementing and upholding the fundamental freedoms enshrined in the Constitution, the media Acts in question, relevant international laws and best practices.
Roger, a freelance journalist and former Bakhita Radio editor, is a student of law. He could be reached on rogeryoron@gamail.com or rogeryoron@yahoo.com
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