Supreme court strikes out NMC's content regulation law

A new law that requires media owners to seek content approval from the National Media Commission (NMC) before publication has been declared by the Supreme Court as unconstitutional.

In a unanimous decision yesterday, the seven-member panel held that certain regulations in the NMC (Content Standards) Regulations 2015 (L.I. 2224) amounted to censorship and contravened Article 162 Clause (4) of the 1992 Constitution.

Per the court’s judgement, regulations three, four, five, six, seven, eight, nine, 10, 11, 12 and 22 of the law have been struck down as unconstitutional.

"The regulations are hereby struck down as unconstitutional, null and void," it held.

The judgement was read by Mr Justice A.A. Benin, while Ms Justice Sophia Akuffo presided over the panel.

Other members of the panel were Mr Justice Jones Dotse, Mrs Justice Sophia Adinyera, Mr Justice Paul Baffoe-Bonnie, Mr Justice Joseph Bawa Akamba and Mr Justice Gabriel Pwamang.

GIBA's case

The regulations required media owners to apply for content authorisation, submit programme guide and content for approval and go by a set of rules stipulated by the NMC or in default pay a fine or serve between two and five years in jail.

Not happy with that aspect of L.I. 2224, the Ghana Independent Broadcasters Association (GIBA) dragged the NMC and the Attorney-General to the apex court.

The NMC claimed that the regulations were an affront to freedom of speech and the rights and freedoms granted to the media under Article 162 of the 1992 Constitution.

 It also averred that no state institution created under the 1992 Constitution, including the NMC, “shall engage in acts or exercise any powers that are likely to amount to censorship, control and direction of the institutions of mass media communication in Ghana”.

“No institutions of mass media communication shall be criminally penalised for their failure to procure authorisation for the content of their publication from the government or any state institution created under the 1992 Constitution, including the NMC,” GIBA said in its statement of case.

Not justified

In the judgement that upheld GIBA’s case, the Supreme Court averred that there was no “legally acceptable justification’’ for the NMC to include the said regulations in L.I. 2224.

“In no case that we are aware of was the regulator allowed to approve in advance the programme content, policies and direction that the media person decides to take," it held.

It further held that the NMC could come out with clearly defined guidelines with sanctions for media operations but there was no need for it to include the said regulations in such guidelines.

The apex court was also of the view that it was not entitled to direct the NMC as to how to regulate the media.

“But it is advisable for the NMC to learn some lessons from the decision. After all, the real essence of the court’s decision is to guide the future conduct of all persons,’’ it held.

No to media impunity

The President of GIBA, Mr Akwasi Agyeman, in an interview, said the decision of the court was not a licence for media impunity.

According to him, GIBA went to court to protect the fundamental rights of the media, as enshrined in the 1992 Constitution.

“Having said that, we also do not want the media to feel that nobody can control them and that they can do whatever they want. We want to build a society where there is some responsibility with media practice,’’ he said.

He added that GIBA would meet the NMC to work out guidelines that would sanitise the media.

NMC

Meanwhile, the NMC says it has accepted the decision of the court regarding the constitutionality of certain aspects of L.I. 2224 brought against the commission by GIBA.

A statement signed by the Chairman of the NMC, Nana Kwasi Gyan-Appenteng, and issued in Accra yesterday said the right to free expression ought to be balanced against responsible practice.

“This philosophy provided the foundation for the law which enjoined public electronic communications networks and broadcasters to abide by minimum standards in the delivery of the content. The commission will study the judgement critically and decide on the next step forward.

“In the meantime, it is important that all stakeholders in the media environment recognise that the decision of the court places greater responsibility on individual judgement and professional responsibility far more than any specific directives the court could have placed on the media or the law would have expected of them,” it said.

The statement expressed the hope that media practitioners would exercise greater professional judgement in their work and support the nation’s quest for peace and stability.