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Prof. Shivji analyses draft media bill
THISDAY REPORTER
Dar es Salaam
A TOP legal expert in the country, Prof. Issa Shivji, has singled out a number of omissions and ambiguities in the proposed new media services legislation and suggested a rethink of some key provisions in the draft bill.
I think there are several omissions in this draft...issues relating to laws of defamation and how they can be and are being used to muffle the media - for example, award of very high damages, strict application of truth, justification criteria even when the complainant is a public figure, says the professor of law in his comments being circulated by the Media Council of Tanzania (MCT).
He continues: In places, I think the draft seems to be influenced by media owners. Rather in my view, the determining goal/consideration in drafting this law, just as was the case with the right to information bill, should be the interest of the public in the exercise of their constitutional rights of information and expression generally and information from the state - that is, transparent governance.
Prof. Shivji, the current MCT president, states further that there are numerous ambiguities in the proposed legislation, with some terms left undefined.
There is also lack of clarity in the use of words/terms. This may be partly due to the fact that the objective to be achieved has not been thought through, he points out in his comments on stakeholders proposals on the draft media services bill.
Prof. Shivji says that while the drafters of the proposed legislation have done a useful job, there is a need for very, very serious discussion and debate.
In one of its provisions, the proposed legislation states that the right to own media shall vest on nationals, provided that aliens can co-own media with a shareholding not exceeding 49 per cent.
However, Prof. Shivji brings up some pertinent questions in this area: What does national mean? Where is it defined? Do you mean citizen? Once we have dual citizenship, wouldn?t this be rendered useless? Isn?t 49 per cent too high for foreign ownership?
What if a foreign citizen owns 49 per cent and then also has a management contract which includes providing foreign editorial staff, etc? What are we trying to achieve by this clause? Once we are clear on that, then we can decide how to phrase it. I guess what one wants to achieve is a kind of monopoly or near monopoly of media by multinational media houses. If so, I think we should phrase this differently and more carefully.
He explains the importance of avoiding monopolisation of media through whatever means, and the need to enable establishment and survival of small presses which can give alternative voices.
Another provision in the proposed legislation states that: Any party aggrieved by the awards of the media council may appeal to the High Court of Tanzania.
But according to Prof. Shivji, the draft bill surprisingly does not define the term media council, hence providing potential problems in the interpretation of the law.
These provisions are very, very problematic. You cannot talk about media council when you have not clearly defined what it is referring to, he says.
According to Shivji, working on the assumption that media councils will be voluntary bodies, there is a possibility that there could be more than one media council - at least in theory.
(If so), then how do you make their decisions enforceable statutorily. Both in the case of mediation and arbitration, parties submit themselves voluntarily to a non-statutory voluntary body, he says.
Shvji also cautions against unnecessarily rushing the bill through parliament. According to government officials, the media services bill will likely be tabled in the National Assembly sometime next year.
THISDAY REPORTER
Dar es Salaam
A TOP legal expert in the country, Prof. Issa Shivji, has singled out a number of omissions and ambiguities in the proposed new media services legislation and suggested a rethink of some key provisions in the draft bill.
I think there are several omissions in this draft...issues relating to laws of defamation and how they can be and are being used to muffle the media - for example, award of very high damages, strict application of truth, justification criteria even when the complainant is a public figure, says the professor of law in his comments being circulated by the Media Council of Tanzania (MCT).
He continues: In places, I think the draft seems to be influenced by media owners. Rather in my view, the determining goal/consideration in drafting this law, just as was the case with the right to information bill, should be the interest of the public in the exercise of their constitutional rights of information and expression generally and information from the state - that is, transparent governance.
Prof. Shivji, the current MCT president, states further that there are numerous ambiguities in the proposed legislation, with some terms left undefined.
There is also lack of clarity in the use of words/terms. This may be partly due to the fact that the objective to be achieved has not been thought through, he points out in his comments on stakeholders proposals on the draft media services bill.
Prof. Shivji says that while the drafters of the proposed legislation have done a useful job, there is a need for very, very serious discussion and debate.
In one of its provisions, the proposed legislation states that the right to own media shall vest on nationals, provided that aliens can co-own media with a shareholding not exceeding 49 per cent.
However, Prof. Shivji brings up some pertinent questions in this area: What does national mean? Where is it defined? Do you mean citizen? Once we have dual citizenship, wouldn?t this be rendered useless? Isn?t 49 per cent too high for foreign ownership?
What if a foreign citizen owns 49 per cent and then also has a management contract which includes providing foreign editorial staff, etc? What are we trying to achieve by this clause? Once we are clear on that, then we can decide how to phrase it. I guess what one wants to achieve is a kind of monopoly or near monopoly of media by multinational media houses. If so, I think we should phrase this differently and more carefully.
He explains the importance of avoiding monopolisation of media through whatever means, and the need to enable establishment and survival of small presses which can give alternative voices.
Another provision in the proposed legislation states that: Any party aggrieved by the awards of the media council may appeal to the High Court of Tanzania.
But according to Prof. Shivji, the draft bill surprisingly does not define the term media council, hence providing potential problems in the interpretation of the law.
These provisions are very, very problematic. You cannot talk about media council when you have not clearly defined what it is referring to, he says.
According to Shivji, working on the assumption that media councils will be voluntary bodies, there is a possibility that there could be more than one media council - at least in theory.
(If so), then how do you make their decisions enforceable statutorily. Both in the case of mediation and arbitration, parties submit themselves voluntarily to a non-statutory voluntary body, he says.
Shvji also cautions against unnecessarily rushing the bill through parliament. According to government officials, the media services bill will likely be tabled in the National Assembly sometime next year.
