The media law regimes in Africa are the result of a confluence of historical and political factors: first, the authoritarian colonial systems inherited at independence; second, international communication policy transfers from the UN and its specialized agencies; and third, the post-Cold War liberalization of the 1990s. The 53 countries on the African continent can be classified into four major media law traditions: (1) the English-speaking tradition, an eclectic mix of British colonial traditions and indigenous African communication values, (2) the highly centralized regimes of the French-speaking countries, (3) the ideologically laden systems of the Portuguese-speaking countries, and (4) the authoritarian media law regimes of North Africa. There is considerable diversity between and within these broad classifications. Each country’s media law regime is a reflection of its specific political, economic, social, and cultural context.
Historical Origins of African Media Law Regimes
The modern press was introduced in Freetown, Sierra Leone, in 1801 by former slaves from the US. The returnees brought with them some of the printing technology and press traditions of the American Republic. Pockets of returning Africans also started newspapers in Liberia, Ghana, and Nigeria. Under British colonial rule, the press was modeled on British newspapers. The colonial administrations allowed the press freedom as long as it did not threaten colonial rule. The first press laws were “sedition” laws passed to counter the scathing attacks of the African press against slavery and European colonialism. Offending reporters and editors were punished, and newspapers were censored.
Things were similar in Southern Africa where the first newspaper, the government-owned Cape Town Gazette and African Advertiser, had been started in 1800. Conflicts between the governor and the press led the British government to issue a press ordinance in 1829. This law extended the freedom enjoyed by the British press to South African newspapers. In 1948, the National Party won the national elections and introduced the policy of apartheid, or strict racial segregation. The government instituted draconian press censorship laws that banned publication of government information and made it illegal to quote “banned” persons, as well as material that was thought to incite hostility between white and non-white. Additionally, the law banned newspapers from publishing any information about prisons, universities, banned organizations, and so on. In addition, there was thorough censorship of books, music, magazines, and motion pictures coming into South Africa.
In broadcasting, British colonial administrations introduced public broadcasting corporations modeled on the British Broadcasting Corporation in all British colonies in the 1920s and 1930s. These localized versions of the BBC were aimed at serving British settlers in Africa. Since adequate revenue for these stations could not be raised from license fees alone due to the limited number of radio sets in the colonies, funding came from a combination of government grants and advertising. These statutory shadows of the BBC survived the colonial era in many African countries.
French Colonial Media Policy
French colonial policy was aimed at assimilating, “civilizing,” and transforming Africans in French colonies into black Frenchmen and women. All French-speaking African colonies operated under the press law of 1881. Though this law granted French colonies the right to publish newspapers, this right was highly circumscribed. All publications had to be under the control of a European French citizen. All publications were systematically censored and anything that appeared in print did so at the discretion of the colonial authorities. All African journalists who did not follow the dictates of the French colonial administration were jailed or exiled to other French colonies.
Broadcast regulation in the French colonies was different from broadcasting in other parts of the continent. Radio was introduced in the French African colonies in the 1930s by a French government agency, La Société de Radiophonie de la France d’Outremer (SORAFOM), the Radio Corporation of Overseas France. These highly centralized colonial broadcasters were managed from Paris. After World War II, management and development of colonial radio came under the auspices of l’Office de Coopération Radiophonique (Corporation for Radio Cooperation). Broadcasting in the French colonies was directed mainly at European settlers and the small group of Frencheducated African elite.
Post-Independence Media Law Regimes
From 1960 to 1990, media law regimes in Africa were a function of communication policies advanced by the United Nations Educational, Scientific, and Cultural Organization, the International Telecommunications Union (ITU), and the press laws inherited from the colonial era. Communication policy transfers from the international community to Africa started in 1958, when the General Assembly of the United Nations passed a resolution calling for the building of mass media facilities in the “Non-Self-Governing Territories” in Africa and elsewhere. This was the origin of the concept of development communication, a policy that dominated the mass media in Africa for more than 40 years.
As formulated by western experts, the development communication perspective postulated that developing countries do not have the resources to indulge in the luxury of the liberal, watchdog journalistic model of the western countries. As such, all media were to concentrate on the task of disseminating information that would improve agricultural production, health, education, and other vital sectors. The development communication model embraced in Africa was premised on the assumption that African countries were fledgling societies where national unity was more important than freedom of the press. Many African politicians argued that in situations of dire poverty, having mass media that concentrated on checking government action was a misuse of scarce resources. The result is that most African countries dusted off the old colonial press laws and imposed them on their media with little modification.
Two countries, Tanzania, a former British colony, and Cameroon, a country with mixed French and British colonial heritage, are cases in point. In Tanzania, President Julius Nyerere nationalized the press in 1970. The Tanganyika Standard, the largest English-language newspaper, which was owned by a British company, was merged with the Nationalist, the paper of the ruling party, Chama Cha Mapinduzi. A newspaper, the Daily News, emerged from this merger. President Nyerere himself became the editor-in-chief of the newspapers. He appointed the managing editor and issued the newspaper’s working charter. The Daily News became the mouthpiece of the ruling party and government.
In Cameroon, the government of President Ahmadou Ahidjo enacted the Cameroon press law of 1966, four years after independence. This law was a slightly modified version of the content-based, highly restrictive colonial press law, which itself was modeled on the French law of 1881 on freedom of the press. The Cameroon press law of 1966 made publication of newspapers and periodicals contingent on pre-approval from the government. Additionally, all newspapers were subject to strict pre-publication censorship. Some licensed newspapers often appeared on the newsstand with whole sections blackened out by censors. In addition, under the press law, libel was both a criminal and a civil offense. News photography was also strictly regulated. The Regulation of Public Photography Act of 1974 made it illegal to take pictures of national public ceremonies without prior governmental authorization. The law on advertising of 1988 required that all advertising agencies be licensed. Additionally, pharmaceutical and health products could not be advertised without prior approval from the Ministry of Health.
These kinds of repressive media laws existed throughout the continent. The most egregious examples included the Ghanian Rumors Decree of 1966, an order that classified all newspaper criticism of the military regime in power as illegal rumor-mongering. In Nigeria, successive military regimes passed a plethora of anti-press decrees that eliminated criticism of corruption and human rights abuses. In Kenya, repressive statutes included seditious libel, the colonial era “misprison of treason,” (an offense that is committed when a journalist is alleged to have knowledge of the actual or intended commission of a treasonous act, or the utterance or publication of a treasonous expression, and does not immediately inform the authorities about it), and inciting disaffection with the government through public utterances or through the press.
In virtually all French-speaking countries, Napoleonic-era laws against insulting the head of state and his family were passed. The media were subject to pre-publication censorship, seizure of published material from newsstands, and denial of the right to purchase newsprint or hire government printing presses. Journalists practiced self-censorship for fear of falling foul of the “forces of law and disorder” that enforced repressive laws. Ironically, during the same period, all African countries ratified the Universal Declaration of Human Rights, which was translated into the 70 major languages spoken on the continent. Additionally, the majority of African countries ratified the African Charter of Human and People’s Rights of 1981, which also guarantees freedom of speech and of the press.
Media Law in Africa (1990 To Present)
The fall of the Berlin Wall in 1989, and the collapse of the Soviet Union in 1991 significantly affected media law in Africa. These historic events triggered popular uprisings and demands for political freedom across the continent. In response, authoritarian regimes legalized opposition parties, and at least 50 of Africa’s 53 countries implicitly or explicitly granted constitutional protection to freedom of speech and freedom of the press. National conferences were held to exorcise the ghosts of the political past and chart the constitutional paths for the future. These new freedoms were circumscribed by local realities. For example, in South Africa, the Bill of Rights (Chapter 2) of the 1994 Constitution of South Africa states: “Everyone has a right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas.” However, freedom of expression does not cover “propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender, or religion and that constitutes incitement to cause harm.” Additionally, freedom of the press in South Africa is balanced away by a limitation clause that states inter alia: “The rights in the Bill of Rights may be limited only in terms of laws of general application to the extent that the limitation is reasonable and justified in an open and democratic society based on human rights, dignity, equality, and freedom.” On the whole, media law in South Africa is a complex affair. South African lawyer Jacques Louw (2005) has noted that more than 100 statutes, many of which date back to the apartheid era, regulate the publication or disclosure of information in South Africa. Information that may not be disclosed or published includes the identity of children under the age of 18 who are involved in cases or legal proceedings, publication of private facts involving divorces, photographs of criminal suspects, certain matters involving terrorism and national security, as well as tax returns.
Having constitutional provisions protecting freedom of speech and of the press is not enough. A few cases from Gabon, Cameroon, and Zimbabwe illustrate the point. In February 2002, Michel Ongoundou Loundah, editor of La Griffe (The Claw), an irreverent, satirical newspaper based in Libreville, Gabon, fled to neighboring Cameroon, and sought political refuge there after La Griffe was banned indefinitely and its whole editorial staff barred from practicing journalism in Gabon. The newspaper was accused of publishing articles and cartoons “bordering on provocation against the head of state.” Loundah was ultimately granted political asylum in France.
Despite its hostility towards the independent press, the government of Gabon has a novel method of controlling the nongovernmental media. In 2005, the government enacted a law creating the National Fund for the Development of the Press and the Audiovisual Media (FONAPRESSE). Under the provisions of this law, the media – including the private media – are to be funded by a combination of government grants, fines levied on violators of the press law, and a 5 percent tax on advertising. This law essentially compromised the independence of the private press.
Journalists in Cameroon fared no better than those in Gabon. On November 29, 1998, Nyemb Ntoogue (Popoli), cartoonist of Le Messager Popoli, a satirical newspaper in Cameroon, fled the country when armed intruders broke into his home one night – he was not home because he had been tipped off – and left him a message to the effect that he must stop drawing caricatures of President Biya or face death by machete. These incidents continue to take place despite the fact that the law on social communication of 1990 had eliminated official pre-publication censorship. Nevertheless, this law criminalized material the government believed would lead to a breach of the peace, affect public morality, or insult the president. One of the most severe penal sanctions against the press was meted out on Pius Njawé, publisher and editor-in-chief of Le Messager (The Messenger). Njawé was sentenced to two years’ imprisonment and fined $1,000 for “propagation of false news” after his newspaper published an article about the health of the President.
Pressure from international human rights groups led to the editor’s release four months into his sentence.
In 1999, a law on legal registration of published material changed pre-publication censorship to post-publication seizure. The law requires all publishers of newspapers, books, periodicals, brochures, posters, and other material destined for public dissemination to deposit four copies of their publications at the National Archives of Cameroon, no more than four hours after publication. This law was ostensibly intended to safeguard copies of all published material. However, in reality, the law was used to screen the content of all material published. Publications found to be objectionable are seized as soon as they arrive on the newsstands.
The Zimbabwean government of President Robert Mugabe has been a thorn in the side of the independent press. In 2004, the Daily News was banned for publishing material critical of the president. Police promptly sealed the premises of the newspaper. On four separate occasions, courts invalidated the ban, but the government defied the courts. After a four-month standoff, a high court judge ordered the police to vacate the premises of the newspaper. To the amazement of everyone, the police complied with the order. As these examples show, the media law environment in contemporary Africa is characterized by a system of law and disorder, a model of governance based on the triumph of arbitrary legalism over individual rights.
Electronic Media Regulatory Agencies
One of the novelties of the post-Cold War era was the creation of regulatory agencies to manage the airwaves. The degree of independence of these agencies depends on the political context in which they operate. Many of these agencies are neither insulated from political pressure nor adequately funded. The result is that transformation of broadcasting from state monopolies to competitive, market-oriented, or public service systems has not always been transparent.
Uganda was the first East African country to liberalize its airwaves. Parliament passed the Electronic Media Statute of 1996 and the Uganda Communications Commission (UCC) Act of 1997 to regulate the electronic media sector. The UCC was given the power to issue broadcast licenses as well as establish, manage, and operate Information and Communication Technology (ICT) training centers. Other African regulatory agencies include the National Broadcasting Corporation of Nigeria (NBC) and the Communications Commission of Kenya. The Independent Broadcasting Authority (IBA) of South Africa is one of the most independent communications regulators on the continent. It manages the frequency spectrum and promotes diversity and equal political access to radio and television broadcasting.
Internet Law and Policy
Most information and telecommunications policies in force in Africa are the result of policy or legal transfers from the UN and other international organizations. With the spread of the Internet around the world in the 1990s, international organizations and aid agencies conceptualized the Internet as a catalyst for rapid economic, social, and political development in the third world. The International Monetary Fund and the World Bank have, through structural adjustment programs, provided Africans with templates of Internet regulations ranging from data protection to electronic commerce. Most countries now have governmental agencies responsible for managing the Information and Communication Technology (ICT) sector, registering Internet Service Providers (ISPs) and monitoring the Internet for harmful or objectionable political content.
One of the first African countries to recognize the potential of the Internet as a tool for development was Burkina Faso. In 1995, Burkina Faso had one of the first Internet nodes in Africa. By 1997, it had set up a regulatory framework to coordinate the management of the domain name server (DNS) for its zone, as well as for a number of neighboring countries. Burkina Faso subsequently created a policy framework, which included information technology regulatory and advisory bodies, and laws regulating training and licensing of information technology workers.
South Africa has the most extensive Internet law regime on the continent. In 1999, the country outlawed child pornography, which was increasingly being hosted on servers within its territory, under the Film and Publications Act no. 65 of 1996 and the Film Publications Amendment Act no. 34 of 1999.
In North Africa (Algeria, Morocco, Libya, Tunisia, and Egypt) governmental agencies are the de facto or de jure gateways to the Internet. In most cases, government ministries or agencies control telecommunications infrastructure, are the principal telecommunications operators and regulators, the domain name registries for their respective countries, the sole Internet service providers (ISPs), the Internet content providers (ICPs), and the Internet hosts. This type of arrangement ensures that transmission of politically and culturally objectionable material to and from the regulating country is blocked by proxy servers.
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