By Obadia Ismail Otim
The Uganda Communications Commission (UCC), the sector regulator, on August 9, 2022 handed out its decision in response to complaints against six media platforms that it found in breach of the minimum broadcasting standards, the standards for general broadcast programming, and the code of ethics for journalists.
Mr. Odrek M. Rwabogo and ‘The Disciples’ of Odrek M. Rwabogo on March 3, 2022 alleged that STV, ABS TV, HG TV, Radio 4, Pearl FM, and Kasuku Live had allowed Joseph Tamale Mirundi, a prolific political pundit on broadcast media, “to utter several unsubstantiated statements against Mr. Rwabogo and other personalities in Uganda.”
The complainants deemed these statements to be false, offensive, and biased stories that carried unverified allegations. Moreover, the subjects of these programmes were not given opportunities to respond or give their perspectives.
UCC, in accordance with its mandate under section 5(1)(j) of the Uganda Communications Act 2013, Regulation 39 of the Uganda Communications (Content) Regulations 2019, and article 28(1) of the Constitution, investigated the complaints and held a joint hearing between the parties, on which basis it arrived at its findings and decisions.
UCC in its decision directed that:
- The six media houses should retract the statements that were made against Mr. Rwabogo because they were false, unsubstantiated, offensive, and biased.
- Each provide space for him and his lawyer to appear and respond to the statements.
- They should ensure that Mr. Mirundi desists from the slanderous campaigns against Mr. Rwabogo or stop hosting him; and each of the media houses should sign an unconditional commitment that whatever Mr. Tamale says will be in compliance with the standards.
- The media houses should put in place measures that will ensure compliance with the minimum broadcasting standards.
- Each media house shall pay USD 260 (UGX 986,000) for distributing prohibited content contrary to the regulations.
- Each media house shall pay another USD 260 for non-compliance with the minimum broadcasting standards.
- Kasuku Live apply for an appropriate license immediately or face the legal consequences.
Are the foregoing directives fair, equitable, and just? Above all, are they lawful? If not, what could be the remedy or available options to the media houses?
It is becoming a common practice for complainants to take their disputes or complaints to the regulator. One wonders why they prefer UCC to the traditional courts of law.
Many have argued that the commission is more experienced in media-related complaints than are the traditional courts, with a practical approach and solutions to disputes. This approach is said to be preferable because it involves healthy engagements and joint hearings between the parties involved.
Some praise the commission for handling disputes in a speedy, fair, and just manner; done with the intention of cleaning up the media industry and making it more professional even if to the detriment of the media houses affected.
To some observers, the commission was too harsh and excessively tough on the media houses. This, they feel, generally stifles creativity and makes legitimate satirical content risky to publish or broadcast.
On social media, one critic pointed out that the intervention of the commission would result in boring shows and programmes; and that people will opt for “unregulated websites that provide unregulated, controversial, and scandalous content in the names of entertainment.”
Subject to the above, a number of questions need to be answered, specifically: What remedy is available for media houses should they disagree with UCC’s decision and directives?
I submit that the intention of the drafters of the Uganda Communications Act, 2013, under part X (sections 60-65), rightly envisaged the need for a tribunal to mediate between the regulator and the licensees. However, the tribunal has never been established. As it is now, UCC receives the complaints, investigates them, makes the decisions, and issues directives. This is totally against the principles of justice and fair hearing.
Whereas one may argue that the aggrieved parties can appeal to the courts of law with competent jurisdiction, it hardly suffices in a regulated industry. The norm and customary practice in democratic societies recognise that a licensee taking a regulator to court has a chilling effect on their relationship moving forward.
Secondly, running to the courts instead of seeking redress at the tribunal offends the process established under the Uganda Communications Act.
Justice Madrama in the case of Kawuki Mathia Vs The Commissioner General URA (Misc. Cause No.14 of 2014) held that: “Where parliament has prescribed a procedure for reviews or appeals before another judicial or quasi-judicial body, the court should not allow another process to be used, further, the High Court cannot usurp powers of Tribunals prescribed by Parliament.”
Justice Dr. Henry Adonyo in the case of Eng. Dr. Anania Mbabazi and Anor Vs Lliso Consulting Limited and 2 Others (HCCS No.1031 of 2019) emphasised the same position.
The enactors of the Uganda Communications Commission Act foresaw the need and gave the Uganda Communications Tribunal the jurisdiction to handle all appeals related to the decisions of the regulator and the minister responsible for the sector. Just like every other authority, the commission needs to be checked by a superior body.
It is therefore undemocratic and unlawful for UCC to continuously make decisions or pass judgements knowing very well that the recipients will not be able to proceed to challenge them before the courts of law or a competent jurisdiction – all thanks to the absence of the Uganda Communications Tribunal.
When all is said and done, this song has been sung numerous times. The media industry cannot be left unregulated. It needs UCC and the regulator needs it.
Regulation when enforced rigidly can be construed as censorship or intimidation. It can suffocate productivity and creativity in a growing industry such as the media. It can also threaten efforts and innovations that promote local content, leading to stagnation in the development of the sector.
Obadia Ismail Otim is a media lawyer and consultant in Kampala.
Photo credit: UCC website