UCRA Bill Memorandum

7/31/2019 UCRA Bill Memorandum

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MEMORANDUM

Uganda: Communications Regulatory Authority Bill.

In March 2012, the Government of Uganda tabled the Communications Regulatory Authority Bill,2012 (the Bill), a major piece of legislation intended to consolidate and harmonise two existingand overlapping laws the Uganda Communications Act and the Electronic Media Act andmerge the regulators they establish into a single Communications Regulatory Authority (theAuthority). The resulting Bill principally covers broadcasting, telecommunications and postalservices, but also contains provisions on cinemas and video libraries.

ARTICLE 19 welcomes the initiative to create a more coherent legal framework governing thesesectors. Moreover, the Bill contains a number of positive features. It places significant emphasison making communications services widely available at affordable rates, and proposes innovativefunding arrangements for the Authority, which will minimise its reliance on funding allocated byParliament thus potentially enhancing its independence.

At the same time, the Bill does not comply with international standards1

in numerous ways. Thefollowing issues are of primary concern and require addressing to ensure compliance withUgandas obligations to protect the right to freedom of expression and opinion under internationallaw:

1. Independence of the Authority from Government:

The Bill should explicitly recognise that any public authority exercising powers in theareas of broadcast or telecommunications regulation should be independent and

adequately protected against interference, particularly of a political or economic nature. Clause 7 should require the Authoritys Board and staff to operate in an independent and

impartial manner at all times, while external persons and entities should be prohibitedfrom improperly influencing or interfering with the Authoritys work.

2. Membership and appointments process of the Authority

Independence of the Authority can only be secured if its membership is also independentand insulated as far as possible from political or commercial inference.

The ICT Minister and the Cabinet should not play a role in the selection of members ofthe Authoritys Board. Nominations should be solicited from civil society, professionalorganisations or the public at large, and appointments should be made by Parliament in amanner that ensures broad cross-party support, after an open process allowing for publiccomment. The Authoritys Director-General should be appointed and as necessary

removed by the Board.

1The analysis is based on the right to freedom of expression as contained in Article 19 of theInternational Covenant on Civil and Political Rights, Article 9 of the African Charter on Human andPeoples Rights, and the Declaration of Principles on Freedom of Expression in Africa, adoptedby the African Commission on Human and Peoples Rights. These standards are alsoencapsulated in the ARTICLE 19 publication Access to the Airwaves - Principles on Freedom ofExpression and Broadcast Regulation (London, March 2002), available at: available athttp://www.article19.org/pdfs/standards/accessairwaves.pdf.


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Authority board members should have fixed-terms of service of three years, and theseshould be staggered to ensure continuity of operation. There should also be an unevennumber of board members, rather than the current 8 to avoid the risk of vote splits.

The list of individuals not eligible for board membership (clause 9) should be broadened.Civil servants and other employees of any branch of government, whether appointed orelected, or who hold office in or are an employee of a political party should be added to

the current list. Ineligible candidates may be nominated but must be given a reasonabletime to eliminate any barrier to membership. Persons who have been convicted of aserious crime or a crime involving dishonesty should also be ineligible to serve, unless asubstantial period of time has passed since the conviction.

Membership should, as far as possible, represent a broad cross-section of Ugandansociety, including in terms of gender balance.

The same independent body responsible for appointing members to the Authoritysboard, such as a cross-party committee of Parliament, should also be responsible forremoval decisions (Clause 10). This process must be transparent to the public.

The remuneration and allowances of the Authoritys Board members should be set byParliament, not the ICT Minister (Clause 12). There should be no discretion in relation toindividual members, or should be set in a fixed proportion to some other measure, suchas the salary paid to ministers.

3. Accountability of the Authority to the public.

The Authority should be accountable to the public. Its meetings and documents should inprinciple be open to the public and it should organise public consultations prior toadopting major decisions or policies.

The Authority should be required to submit its annual report on its activities, including itsaudited accounts, to Parliament and to publish this report online. It should not be requiredto submit any reports to the ICT Minister as Clause 4(2) currently requires.

4. Too much discretion conferred upon the Minister responsible for ICT.

The Minister responsible for ICT is given far too many powers without the appropriateaccountability mechanisms, including approving its budget, appointing and dismissingmembers of its Board, and issuing binding guidelines to them.

Parliament, rather than the ICT Minister, should be responsible for approving theAuthoritys budget and any loans, grants, gifts and donations it wishes to accept.

5. Broadcast Policy

Clauses 2 and 4 should make a clear statement of the Bills purpose. Promoting the rightto freedom of expression and the free flow of information should be central to this.

The Authority should be required to ensure that the programmes it is obliged to promotereflect and serve society as a whole, including vulnerable or marginalised groups, byproviding access to a wide range of information and viewpoints in a wide range oflanguages.

The promotion of pluralism of broadcasting organisations and media ownership must becentral to the law, in addition to the tackling of anti-competitive behaviour.

The broadcast policy should specifically incorporate a binding international human rightsinstrument, such as the International Covenant on Civil and Political Rights or theDeclaration of Principles on Freedom of Expression in Africa, as guidance.

Clause 6, which gives the Minister the power to issue binding policy guidelines shouldbe scrapped.

6. Frequency Planning

The broadcasting landscape the Authority should pursue must be made clearer in the Bill.The Authority should be made responsible for the development, in an open andparticipatory manner, of a frequency plan for those frequencies allocated forbroadcasting.


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The plan should ensure that the available frequencies are shared equitably and in thepublic interest among the three tiers of broadcasting (public, commercial and community),the two types of broadcasters (radio and television) and broadcasters of differentgeographic reach (national, regional and local).

7. Broadcast Licensing

The technical criterion for determining eligibility for a broadcasting license is currentlydivided between Clauses 25(2) and 40(2). These provisions should be consolidated intoone.

Political parties should not be eligible for a broadcasting licence, but should haveequitable access to the airwaves.

The selection criterion in clause 25(2) (d) of the Bill that social, cultural and economicvalues should be considered is too vague and broad and should be deleted. Threeadditional criteria should be considered: whether the proposed service (1) contributes tothe realisation of the frequency plan; (2) promotes the availability of a wide range ofviewpoints; (3) contributes to diversity of media ownership.

The Authority should be prohibited from imposing any licence condition that does notserve the objectives of the Bill (Clause 4).

The Authority should set out a schedule in advance establishing the duration and cost of

different types of broadcasting licences. There should be a presumption of licence renewal, which can be overcome if

continuation of the service is no longer in the public interest (Clause 45).

Decisions to modify the conditions of a licence should be subject to judicial review beforean independent and impartial court, rather than review by the ICT Minister.

The requirement in Clause 26 that persons licensed by the Authority to install or operatea radio or TV station or communications apparatus to register with the Media Council isunnecessary.

8. Frequency allocation

High-value frequencies should be awarded through a properly announced tenderprocedure, while licenses for frequencies in underserved areas and for communitybroadcasting should be made available on a rolling basis.

9. Licensing of television sets, cinemas, video or film libraries.

There should be no requirement for the licensing for the ownership of these materials.The provision serves no purpose and will be expensive to enforce. Registrationrequirements in this respect found in Clauses 33 and 39 respectively are unnecessaryand should be removed.

9. Content-based restrictions.

It is appropriate to adopt a regulatory system that ensures that broadcasting contentserves the public interest. However, effective self-regulation is the best system forpromoting high standards in the media, and any prescriptive content restrictions arepotentially dangerous for the right to freedom of expression.

The content-based restrictions in the Law are far too broad and vaguely defined. Inparticular, Clauses 29(a) and 32 of the Bill, requiring broadcasters to respect publicmorality and ethical broadcasting standards, should be deleted. Similar provisionsrequiring parties to ensure harmony and to refrain from the distortion of facts aresimilarly problematic.

The Bill should stipulate that the Authority will not enforce any content rules on a subjectwhere the broadcasting sector has implemented an effective system of self-regulation.

Clause 31 should be amended to state that the Authority may develop minimumbroadcasting standards in consultation with licensed broadcasters and the public at large.

Any person resident in Uganda should be permitted to complain to the Authority aboutbroadcast content, since all residents are potential consumers.


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10. Searches of Broadcasters Premises

A warrant issued by a Magistrate should be required for searches of broadcasterspremises as well as private dwellings. The Bill should state that no warrant may beissued where a search has as its goal or likely consequence that the identity of aconfidential source for a news story will be disclosed.

11. Sanctions for licence breaches

The provisions on the application of sanctions in case of breach of licence conditionsshould be reviewed for consistency and readability. It should be made explicit thatsanctions will be applied in a graduated fashion, starting with a warning or fine, withsuspension or revocation of the licence reserved for very serious cases, or where otherremedies have had insufficient effect.

The ICT Minister should not have the authority to compel an investigation by theAuthority; Clauses 53(2) and 54(2) of the Bill should be deleted.

Licence holders should be guaranteed the right to make representation any time acomplaint against them is investigated.

Involvement in treasonable offences is too vague a ground for licence suspension orrevocation and should be removed from the Bill.

12. Communications Tribunal

Part XI of the Bill should be deleted. There is no need for a dedicated CommunicationsTribunal. Cases arising from the Bill can be heard by the High Court, which could set up aspecialised chamber as necessary. Alternatively, a significant overhaul is necessary toensure the ICT Minister, and the Government more generally, have no powers that canbe used to improperly influence the Tribunal such as the power to remove judges.

-END-

NOTES For ARTICLE 19s full legal analysis of the Communications Regulatory Authority Bill,

see: http://www.article19.org/data/files/medialibrary/3048/12-04-18-LA-uganda.pdf

For ARTICLE 19s publication Access to the Airwaves - Principles on Freedom ofExpression and Broadcast Regulation (London, March 2002), available at: available athttp://www.article19.org/pdfs/standards/accessairwaves.pdf.

Documents

UCRA Bill Memorandum