Media Law Handbook for Eastern Africa VOLUME 1 Media Law Handbook for Eastern Africa VOLUME 1 Justine Limpitlaw KONRAD-ADENAUER-STIFTUNG REGIONAL MEDIA PROGRAMME • JOHANNESBURG • 2016 Published by Konrad-Adenauer-Stiftung Regional Media Programme: Sub-Saharan Africa 60 Hume Road PO Box 55012 Dunkeld 2196 Northlands Johannesburg 2116 Republic of South Africa Republic of South Africa Telephone: +27 (0)11 214-2900 Telefax: +27 (0)11 214-2913/4 www.kas.de/mediaafrica ISBN: 978-0-9870243-3-6 © Konrad-Adenauer-Stiftung, 2016 This publication is an open source publication. Parts thereof may be reproduced or quoted provided the publication is fully acknowledged as the source thereof. Cover design: Jocelyn Adamson Design Author photograph: Lisa Trocchi, [email protected] Editing, layout Tracy Seider, Tyrus Text and Design and production: [email protected] Printing: United Litho, South Africa v Acknowledgements It is not easy to write a book about media law in Eastern Africa because of the difficulty in accessing the laws. In a number of countries, consolidated laws are not published so one has to piece together the current state of the law based on a series of amendment acts. Law reports are not published, so copies of actual judgments have to be obtained from the courts. In many countries there is only one source of statutes or regulations: the government printer, with a single outlet in the capital. Not only is it tough for journalists in these countries to access laws, it is tough for an author to track them down. This book would therefore not have been written without the very great assistance provided by lawyers in or from these countries. I am indeed greatly indebted to: Burundi, the name of the lawyer who assisted has been withheld at the lawyer’s request due to safety concerns; Eritrea, Luwam Dirar; Ethiopia, the name of one of the lawyers who assisted has been withheld at the lawyer’s request due to safety con- cerns and Luwam Dirar; Kenya, Eric Ngaira; Rwanda, Robert Mugabe; and Uganda, Catherine Anite. Sadly, we could not find lawyers in Djibouti or Somalia who were able to provide us with materials that would have enabled us to include those countries in this book. Perhaps we will be able to do so in a later edition. I am extremely grateful to Nani Jansen, Henry Maina and Brigitte Read for assistance in finding and getting in touch with the in-country lawyers. I am not multi-lingual and so I relied heavily on my very able French translator, Laurent Badibanga, for the chapter on Burundi. Again, I am greatly indebted to him. Finally, this project would not have happened without the Konrad-Adenauer-Stiftung (KAS) Media Programme sub-Saharan Africa, based in Johannesburg. We have been delighted (and a bit astounded) at the particularly warm reception that the two- volume Media Law Handbook for Southern Africa has received from journalists, academics, lawyers and media practitioners. Consequently, when KAS Media Africa’s current director, Christian Echle, broached the possibility of a media law handbook for Eastern Africa, I leapt at the chance. A number of people have been particularly helpful in getting the book published, and I would like to make mention, with thanks, of Douglas and Heath White for editorial vi MEDIA LAW HANDBOOK FOR EASTERN AFRICA – VOLUME 1 assistance on certain chapters, and Tracy Seider for her overall editing of this book and for getting it to print. It has been rewarding and exhilarating to work with the KAS Media Programme, which is committed to democracy and to the rights to a free press and the free flow of information and ideas. I am extremely grateful to have been given the chance to explore current media law issues in this part of Africa. Justine Limpitlaw vii Foreword True freedom of the media is based on a number of fundamentals: it is based on good training for young and upcoming journalists, and on business models that allow media houses and publishers to be independent. In addition, it is based on the more general recognition of freedom of expression within a society, and on the perception that a journalist’s work is an important contribution towards better information and better democracy. However, without the political will to support this idea, all of the above would not be enough to defend freedom of the media. The Media Law Handbook for Eastern Africa is a gauge of this political will. It outlines the laws that have been introduced to guarantee the freedom and independence of the media in the region; but it also clearly highlights where this effort has not been taken far enough and where the protection of free media is poor. This book - the first of its kind - gives an instant overview of relevant media laws in six Eastern African countries, making it a valuable resource for journalists, lawyers and civil society stakeholders alike. The handbook not only contains a comprehensive overview of applicable media laws (governing the print, online and broadcast media) for each country covered but also contains suggestions on possible law reforms to improve the protection of the media in the respective countries. The Konrad-Adenauer-Stiftung’s (KAS) Media Programme for sub-Saharan Africa has been working for over a decade on the regulatory framework for journalists in Africa. Through its ongoing work, KAS Media Africa has seen the critical role that media law plays in regulating the media and in creating a media environment, whether free or not free. Sadly, far too many journalists in Eastern Africa do not have access to applicable media laws (statutes, regulations or case law) because these are not easily available. Volumes 1 and 2 of this handbook are designed to fill that gap and empower both media owners and journalists to deal with the legal aspects of their work. A digital version of both volumes can be found online, including a French version of the Burundi chapter, as well as the two volumes of the Media Law Handbook for Southern Africa, which were published in 2012 and 2013 respectively. Go to www.kas.de/MediaLawAfrica to download them. KAS is an independent non-profit organisation bearing the name of Germany’s first post-World War II chancellor. In the spirit of Konrad Adenauer, KAS aims to strengthen democratic forces and develop social market economies. For more than 40 viii MEDIA LAW HANDBOOK FOR EASTERN AFRICA – VOLUME 1 years, KAS has been cooperating with partner organisations in over 100 countries to deepen democracy. For an overview of KAS activities, go to www.kas.de. KAS views the media as an integral part of a modern democracy and as being essential for development. To this end, the media must be empowered and supported to fulfil their role as whistleblowers and watchdogs within society. But reporting on public and private sector misdeeds is not enough. The media must be a positive force, supporting human rights and shaping progressive ideas in an open society through informed and impartial reporting and analysis. A free, sustainable and competent press is a catalyst for literacy, modernisation, informed polities and participatory development. For more information on KAS Media Africa and its activities, go to www.kas.de/mediaafrica. In supporting this project, KAS Media Africa has worked with the editor, Justine Limpitlaw, for many years. Her experience as a media lawyer who has worked in a number of African countries has stood her in excellent stead in understanding the legal environments in Eastern Africa. Working with lawyers and consultants on the ground in each country, Limpitlaw has put together a comprehensive work. We hope that journalists find this a useful resource. We also hope that media law activists and reformers find concrete guidance as to what changes ought to be made to deepen democratic media environments in Eastern Africa. Christian Echle Director, KAS Media Programme Sub-Saharan Africa ix Abbreviations General ACHPR African Commission on Human and Peoples’ Rights AU African Union COMESA Common Market for Eastern and Southern Africa EU European Union ICCPR International Covenant on Civil and Political Rights ICT Information and communications technology KAS Konrad-Adenauer-Stiftung MP Member of Parliament NGO Non-governmental organisation PAP Pan African Parliament UN United Nations UNESCO United Nations Education, Scientific and Cultural Organisation WSIS World Summit on the Information Society Burundi ABP Agence Burundaise de Presse AFP Agence France Presse NCC National Council of Communication OPB Observatory of the Press in Burundi RTNB Radio Television National de Burundi TRA Telecommunications Regulatory Agency Eritrea CPJ Committee to Protect Journalists JSC Judicial Service Commission PFDJ People’s Front for Democracy and Justice Ethiopia HRC Human Rights Commission JAC Judicial Administrative Council EBA Ethiopian Broadcasting Authority EBC Ethiopian Broadcasting Corporation xi Contents CHAPTER 1 THE ROLE OF THE MEDIA AND PRESS FREEDOM IN SOCIETY 1 1 INTRODUCTION 1 2 WHY IS FREEDOM OF EXPRESSION IMPORTANT? 2 CONSTITUTIVE RATIONALES 2.1 Overview 2 2.2 Constitutive rationales for freedom of expression 2 2.2.1 Equality 2 2.2.2 Dignity 3 2.2.3 Autonomy and personality 3 2.3 Foundational international instruments and the constitutive 3 rationales for freedom of expression 2.3.1 The Universal Declaration of Human Rights 3 2.3.2 The International Covenant on Civil and Political Rights 4 2.3.3 The American Convention on Human Rights 4 2.3.4 The African Charter on Human and Peoples’ Rights 4 2.3.5 Treaty for the Common Market for Eastern and Southern