BY Guest Writer
BY MACK OGBAMOSA
A vibrant media is one of the pillars of a viable democracy but there cannot be a vibrant media where the safety of media practitioners, who act as watchdogs of the society, is not protected. It is a well-known fact that journalists face a myriad of challenges in the course of performing their duties, especially in developing democracies like Nigeria. These challenges include harassment, intimidation, arrests, kidnapping, and health hazards including death.
As the world marks the tenth anniversary of the United Nations (UN) Plan of Action on the Safety of Journalists and the Issue of Impunity this month. It is coordinated and marked on November 2nd every year by the United Nations Educational, Scientific and Cultural Organisation (UNESCO), there is a need to examine some of the laws, policies and practices that inhibit the safety of journalists in Nigeria.
Constitutional provisions for the safety of journalists
There is no doubt that we have some constitutional provisions for the safety of journalists but how effective are these provisions?
There are three provisions in the 1999 constitution (as amended) that relate to the safety of workers/ journalists. Two are under Chapter II Fundamental Objectives and Directive Principles of State Policy while the third is under Chapter IV Fundamental Rights.
One is a general provision in Section 17.3(c) for all workers. The other two relate directly to the media. They are in sections 22 and 39.
Section 17. 3(c) states that: “The state shall direct its policy towards ensuring that the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused”.
Section 22 under obligations of the mass media states: “The press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives in this chapter and uphold the responsibility and accountability of the government to the people”.
Section 39 (1) Right to freedom of expression and the press states: “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference. (2) Without prejudice to the generality of sub-section (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions: Provided that no person other than the Government of the Federation or of a State or any other person or body authorised by the President on the fulfilment of the conditions laid down by an Act of the National Assembly shall own, establish or operate a television or wireless broadcasting station for any purpose whatsoever “.
Apart from these constitutional provisions, there is the Freedom of Information Act. Its essence is to make public records and information readily available to the public as obtained in other democracies.
It protects public officers from adverse consequences for releasing information but not the journalist who publishes the information.
Limitations of these provisions
The first two of these provisions ( sections 17 and 22) are under Fundamental Objectives and Directive Principles of State Policy and therefore not enforceable.
Even though Section 22 of the constitution gave responsibility to the media to monitor governance and hold the government accountable to the people, it did not empower the media by ensuring that it can actually operate in freedom. The freedom given here is not enforceable.
This is a result of the provision in Section 6 .6(c) of the same constitution which bars the courts from entertaining any matter in respect of the justiciability of the enforceability of Chapter II.
Section 6.6(c) states: “The judicial powers vested in accordance with the foregoing provisions of this section- Shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution”.
Contrary to popular belief, the provision for freedom of expression and the press in section 39 of the constitution only guarantees freedom of expression, not freedom of the media practitioner to perform his or her duties. Freedom of the press here relates only to the freedom to establish and own media houses.
This is unlike the United States’ constitution which expressly recognises freedom of the press in its First Amendment.
In the Senate vs Tony Momoh (1983), the appeal court held that journalists have no special freedom other than that of the ordinary citizen and that the press is not the fourth arm of government. It also held that journalists can be compelled to reveal their sources of information in certain circumstances.
There are also limitations to the right to freedom of expression in Sections 39(3) and 45 of the constitution.
Section 39(3) states: “Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society-
(a) for the purpose of preventing the disclosure, of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or
(b) Imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law“.
Section 45: Restriction on and derogation from fundamental rights states that: “Nothing in sections 37,38,39,40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society-
(a) In the interest of defence, public safety, public order, public morality or public health; or
(b) For the purpose of protecting the rights and freedom of other persons“.
Limitations of freedom of information act
The freedom of information act also has its limitations. Except for the imposition of obligations on the media, journalists are not protected with any special rights or privileges apart from the right to freedom of expression
This apart, journalists are usually denied information by public officers and in many cases, public officers claim ignorance of the existence of the act.
Other laws/policies militating against the safety of journalists
Other laws and policies militating against the safety of journalists include:
The way forward
Unless and until these issues are effectively tackled, the Nigerian journalist will continue to suffer as a watchdog without protection.
Ogbamosa, a legal practitioner/communications consultant, can be reached via mack_ogbamosa@yahoo.com.
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