By Peter Quaqua /12 October 2014
I have been following the ongoing debate between the Press Union of Liberia (PUL) and the Liberian government over the licensing of journalists in the country and I am obliged to share my thoughts with the hope of putting some issues into context and to “cool the temper.” Honestly I thought we could spare ourselves of all these ‘distractions’ to apply our combined energies and resources to the national Ebola fight and stop opening new frontiers because we are doing more harm than good to our country. So let me therefore beg the government to please keep this fight for another day if it feels strong about pursuing it. While advising however, I should give a hint of what to expect if and when the regime decides to proceed.
The Call for Journalists to lineup for Licensing
Could this be another panic decision or an act of desperation? On Tuesday, September 30, 2014, a release from the Liberia News Agency (LINA) quoted Deputy Information Minister Isaac Jackson as saying that journalists must seek annual permits from the Information Ministry, in accordance with Chapter 31.8 of the New Executive Law. The PUL rightfully challenged the decision and called on journalists not to cooperate.
Throughout my practice as a journalist dating back to 1996, and my stewardship on the leadership of the Press Union, I was never confronted with this subject of licensing or registering journalists as it were. It is safe to suggest that previous regimes either knew it was a controversial issue or a potential minefield and did not venture in that terrain. Those regimes included the noted dictators of Samuel Doe and Charles Taylor.
Surprisingly it is our present government that shouts all over the place about its democratic credentials that is beating its chest about enforcing such a law that is so anti democratic with all intents and purposes. And one obvious justification is because “it is on the books.” If a piece of legislation or practice was classified as bad under one regime, how can that same instrument or practice be acceptable by the same people who vilified it in a supposedly good and civilized government?” This is simply a contradiction!
I do remember in 2009, the first confrontation I had as President of the Press Union with the Ministry of Information under the leadership of Dr. Laurence Bropleh, was to resist the Ministry’s insistence on registering newspapers. The Ministry had written printing houses not to print certain newspapers for failure to regularize their status. It took the intervention of the President Sirleaf herself to put down that standoff – credit to the then Press Secretary Cyrus Badio, who advised the President to step in. You can ask Madam Elizabeth Hoff, Kenneth Best, Philip Sandi and Dr. Bropleh himself they were all in that crisis meeting in the President’s office. I should mention the late Tom Kamara [peace be to his ashes], he and Mrs. Hoff were only short of throwing fist in the presence of the President. The exchanges were extremely hot. We did not only resist the scheme to license newspapers, but challenged the law the Ministry was relying upon. At the close of that meeting the President suggested that the law creating the Ministry of Information be subjected to review. Unfortunately nothing happened beyond that meeting. I believe we were all too consumed with passing the Freedom of Information Act, forgetting about all others including the Public Service Broadcaster and the Independent Broadcast Regulator Bills that were before the legislature.
And the Law in Question is PRC Decree # 46
The government quotes Chapter 31.8 of the New Executive Law of 1972. NO! Chapter 31 was actually repealed by the Military Government of Samuel Doe through a decree issued on June 11, 1981 and published July 13, 1981. The caption reads: DECREE BY THE PEOPL’S REDEEMPTION COUNCIL OF THE ARMED FORCES OF THE REPUBLIC OF LIBERIA REPEALING CHAPTER THIRTY-ONE OF THE NEW EXECUTIVE LAW AND AMENDING SAID LAW TO PROVIDE FOR A NEW CHAPTER THIRTY-ONE TO CREATE THE MINISTRY OF INFORMATION.
Under decree 46, the National Communication Bureau [section 31.8] is established in the Ministry of Information “as the official interpreter and regulator of the communications policies of government.”
Aware notwithstanding that this could be a fight that they would not win easily, the Military government sought to enlist the cooperation of professional bodies in regulating the communication sector as stated in letter ‘C’ count 3 sub-titled, Journalists and Journalism. The provision says: “The regulations affecting journalists and journalism in Liberia shall be formulated in consultation with such professional journalistic organizations to ensure the highest possible standard of professional competence.”
This is why I believe the Ministry under previous regimes [in spite of their so-called bad governance and dictatorial tendencies] entered memoranda of understanding with the Press Union of Liberia on this subject. As welcoming as that gesture may have been, the MOU was only as good as a friendly letter, even though the “dictators” were gentlemen enough to keep their words. MOUs are not legal documents, I am told, so we in the media cannot afford to operate at the mercy of regimes. They have proven to be notoriously unreliable and self seeking especially when their vested interest is threatened. Our arguments must therefore be based on our constitution and internationally accepted legal protocols.
Letter ‘D’ of the functions of the Bureau, is perhaps the most contentious provision of the decree. It says the Bureau should: “Register annually, in the first two weeks of January, all journalists in Liberia. A precondition for the registration of journalists shall be the presentation of a revenue receipt indicating the payment of the required license fee for the current year. No journalist shall be permitted to practice journalism in Liberia who has not registered with the Ministry of Information. Any journalist violating this provision shall be guilty of misdemeanour in the first degree.”
Letter ‘E’ reads, the Bureau shall: “recommend to the Minister after a hearing, the suspension of the license of any journalists who violates any section of this decree or any regulation promulgated by virtue of same. Any journalists threatening with the suspension of his license by the Bureau shall have the right to appeal to the Minister for a hearing before a determination is made by the Minister. The decision of the Minister in all cases shall be final.” Player and referee at the same time, isn’t it?
This the law, promulgated by a military decree, that the current regime, [arguably the “most professed democratic and civilized government” of our country, headed by President Sirleaf, [a Nobel laureate] clamouring to enforce. Credit to the President for being the first in the whole of West Africa to have signed a Freedom of Information legislation. But under this same President, journalists must now pay for their freedom to practice under a licensing scheme. Unbelievable!
I take that the current leadership of the Ministry of Information is embarrassed that they get their mandate from a decree promulgated by people who shot their way to power that’s why they speak of Chapter 31 of the New Executive Law that we are yet to see. Or maybe they made this decision without knowing the implication for the image of the government and the country. When you do image building, you must circulate the intended and unintended consequences of your pronouncements. I really wish we had not made this pronouncement public because it sends the impression outside of our borders that we are in dooms day. But let’s not shy away from it – let’s talk it because outcome defines our character as a nation and people.
Licensing Violates Freedom of Expression
The Liberian Constitution guarantees freedom of expression which encompasses press freedom, but I really hate to reference it because it is a source of repression and contradictions by my understanding. No wonder why the President has set up a committee to review the document. This is one Constitution that even legal minded people must always run to Supreme Court to interpret. It appears like it was written only for the understanding of the five people on the Supreme Court bench. And it will interest you to note that not even one of those justices is competent or courageous enough to render an opinion on a constitutional issue. For instance, Justice in Chambers, Kabineh Ja’neh could not determine whether or not the Liberian Government was right to seize the National Chronicle Newspaper when he heard a petition for Prohibition. He had to refer it to the full bench because the issues raised by the petitioner were constitutional. So our laws and legal system are structured to make access to justice even more complicated. As a consequence, the Chronicle remains closed waiting the full bench of the Court to assemble. Forgive my common sense on this matter.
Now, Article 15 (a) of the Constitution says: “Every person shall have the right to freedom of expression, being fully responsible for the abuse thereof. This right shall not be curtailed, restricted or enjoined by government save during an emergency declared in accordance with this Constitution.”
By my limited understanding, this provision assigns power to the president to silence speech during an emergency even though it is a fundamental right. What level of emergency or threat can there be to the survival of a people that the president is instructed to curtail free speech as way of resolving it? This has a chaotic undertone. When you curtail speech, you ask people in essence to go underground which can be dangerous.
Count (e) of the same Article 15 says:”This freedom may be limited only by judicial action in proceedings grounded in defamation or invasion of the rights of privacy and publicity or in the commercial aspect of expression in deception, false advertising and copyright infringement.”
There is no secret that every government seeks to control the media – covertly or overtly and licensing journalists is one way governments can maneuver to prevent critical journalists deemed “enemy of the government” from operating.
But under the universal principle of freedom of expression as a basic human right, licensing journalists is a violation. Expressing oneself is a fundamental right that should never be restricted regardless of status, educational qualification, political affiliation, religion or ethical standing. This is why it has become almost impossible to regulate entry into the journalism profession.
I recall the Ministry of Information under the Interim regime of Gyude Bryant was pushing such idea of setting an educational benchmark for practice. The difference here is that the people in the Ministry then did not go public; they came to the PUL first so we were able to arrest it quietly without any public show. There is a tendency for people who are schooled at the higher level in the profession to want to regulate the practice by their standard, but we can’t. We have seen some of our colleagues who graduated with university degrees underperformed, while those who are yet to attain higher education shone. And with advent of internet and what is now known as “citizen journalism”, it makes it even difficult to regulate and define who a journalist is.
Way back in 1980 when Samuel Doe and his friends were thinking about issuing a decree to protect the PRC in power, the International Commission for the Study of Communication Problems, also known as the MacBride Commission report to UNESCO, concluded, “Licensing schemes might well lead to restrictive regulations governing the conduct of journalists; in effect, protection would be granted only to those journalists who had earned official approval.”
Essentially, there are other national and international legal opinions on the subject that should help enrich and broaden our understanding of the concept of freedom of speech. The following is excerpt of an article as found on www.Article19.org :
In 1985, the Inter-American Court on Human Rights (IACtHR) held that licensing was a restriction on freedom of expression when it ruled on a law to license journalists in Costa Rica. Supporters of the statue argued that a requirement for journalists to become members of a ‘colegio’ (association) was legitimate for three different reasons: “first, because it was necessary for public order and the ‘normal’ way to regulate the profession in many countries; second, because it sought to promote higher professional and ethical standards, which would benefit society at large and ensure the right of the public to receive full and truthful information; and third, because the licensing scheme would guarantee the independence of journalists in relation to their employers.”
The IACtHR remarked that the organization of professions, including journalism, through associations could facilitate the development of a coherent system of values and principles, and so contribute to public order, if that term was understood widely. However, it also observed that the same concept of public order would benefit much more from scrupulous respect for freedom of expression:
Freedom of expression constitutes the primary and basic element of the public order of a democratic society, which is not conceivable without free debate and the possibility that dissenting voices be fully heard … It is … in the interest of the democratic public order … that the right of each individual to express himself freely and that of society as a whole to receive information be scrupulously respected.
Responding to the argument that a licensing regime is simply the ‘normal’ way to regulate certain professions, the IACtHR distinguished between journalism and, for example, the practice of law or medicine. In contrast to lawyers and physicians, the activities of journalists – the seeking, receiving and imparting of information and ideas – are specifically protected as a human right, namely the right to freedom of expression.
The IACtHR also dismissed the argument that licensing schemes are necessary to ensure the public’s right to be informed, by screening out poor journalists. The IACtHR felt such a system would ultimately prove counterproductive:
General welfare requires the greatest possible amount of information, and it is the full exercise of the right of expression that benefits this general welfare … A system that controls the right of expression in the name of a supposed guarantee of the correctness and truthfulness of the information that society receives can be the source of great abuse and, ultimately, violates the right to information that this same society has.
Other courts, national as well as international, have taken a similar point of view. For example, in August 1997, the High Court of Zambia invalidated an attempt to establish a statutory body to regulate journalists, stating that any effort to license journalists would breach the right to freedom of expression, regardless of the form that effort took.
The three special mandates for protecting freedom of expression – the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression – adopt a Joint Declaration each year setting out standards relating to important freedom of expression issues. In their 2004 Declaration, they stated: “Individual journalists should not be required to be licensed or to register.”
It is thus clear that, under international law, licensing and even registration of media workers is prohibited. In practice, licensing schemes for journalists are virtually unheard of in established democracies.
The intent of this intervention as I mentioned earlier is to put the issue into context and cool the temper; if you didn’t get that impression at the end of your reading, my apologies. But the issues that affect the democratic governance and happiness of the people should never be treated casually. This is why we speak about it with such passion. The solution to the problems in the media is never found in registering/licensing journalists. We must insist on a peer review mechanism that is grounded in a strong self-regulatory regime.
I am aware that the struggle for press freedom is a life-long commitment because there is always a struggle between good and evil. Thanks for your attention.
Peter Quaqua is the immediate past President of the Press Union of Liberia and current President of the West African Journalists Association (WAJA) – Contact: firstname.lastname@example.org (+231) 886529611