Professor Guy Berger gave RAP 21 an inside look at the recent United Nations Educational, Scientific and Cultural Organisation (UNESCO) publication he spearheaded, Media Legislation in Africa, A Comparative legal Survey. Berger discussed how the report’s findings on inadequate legal systems could be used and disseminated to push Africa into the vanguard of media law reform.

The report examined the status of journalism in ten constitutional democracies across Africa including: Ethiopia, Ghana, Kenya, Mali, Mozambique, Nigeria, Senegal, South Africa, Tanzania, and Zambia. The countries were selected on the basis that they “have a comparative benchmarking for stakeholders in them to promote media law reform in the interests of democracy and development,” said Berger.

The report finds that approximately one third of these countries are not fulfilling their commitment to international protocols. For example, Tanzania and Kenya do not specifically mention freedom of the media in their constitutions. However, even constitutions with reference to a free media can be insufficient inasmuch as who can and cannot be a journalist can be determined at the whim of authorities utilising ambiguous constitutional provisions.

Adding to the impetus, the report reiterates that a pluralistic media is fundamental for a well-governed democratic society as an effective press fosters transparency in government action and more informed dialogue between citizens and government. With that, according to the report, “broad international jurisprudence amounts to best practice as regards to rights around expression, information, and media.”

A series of similar statutes have been interwoven into African jurisprudence as well. They have arisen from such institutions as the African Union (AU) to sub-regional instruments carried out through legislative tools such as the 1993 Treaty of the Economic Community of West African States (ECOWAS).

Though as the study points out, the current legislation in numerous African countries at the more local level often does not meet the benchmark set by international standards of press freedom and freedom of expression and can even conflict with it.

For example, in Senegal, the constitution defines what comprises a journalistic career (similar to Mozambique) and requires registration. Similar draft laws are present in Tanzania, Kenya and Ethiopia. In Mali, only individuals with certain qualifications can be editors. Journalists in Nigeria are also subject to registration. In South Africa and Ghana, and to a lesser extent Mozambique, any citizen can exercise their right to freedom of speech through journalism.

The report shows that media laws are also often rooted in unclear provisions. For example, licensing and registration requirements are commonly misused because of arbitrary application-they can be easily denied or taken away. The legacy of criminal defamation and insult laws are also continuously used in all countries surveyed except for South Africa and Ghana.

Fundamental rights are sometimes waived and may even be rescinded for no good reason. Such shortfalls create the space in which authorities can arbitrarily clamp down on the media.

Second, and perhaps more important, the study analyzes the incongruent between law and the policy in a country. Berger stresses, “policy, in short, should be at heart of law, but this logic is too often obscure, ill-considered or unelaborated.” Constitutions need to be leveraged as to lead legislation that can foster good governance. When these players do not appropriately interact and reflect each other abuses in media law can emerge.

For instance in Mali strong provisions on access to information are in place but they are not implemented: “There is no background policy that takes cognisance of implementation challenges.” In other cases there is no agreed upon media policy to which all significant actors agree, as in strife-torn Ethiopia, that allows governments to manoeuvre without being held accountable.

Finally, a series of recommendations for protecting and further developing effective media are outlined. The suggestions are especially relevant in that the varying levels of press freedom in the ten countries provide a sort of microcosm of the interplay between societies, government, legislation, and media that can be applied across the continent.

Berger said to RAP 21, “the more that the media see themselves as having proactive and institutional interests in law reform, and not just as reacting to repression, the better they can make the environment.” This can be achieved via disseminating information on both existing laws and commitments and the direction countries should move to align with international standards on press freedom: “Organised formations like journalist unions or owners’ associations are needed to take up the issues with government, and to alert-and even lead-other stakeholders in the public, like journalism schools, NGOs, trade unions, and the like.”

Journalistic content also plays a role. “Individual journalists also can legitimately become activists in the cause of media law reform through the kinds of stories they do and follow up on,” Berger said. Another way to bolster the quality of journalism, Berger said, is to produce journalism manuals and host professional trainings.

When asked what he would most want to relay to media practitioners about media legislation Berger said: “while there are worse countries in Africa that one can compare to, it is also possible to often pinpoint examples of world-class media law and practice. Such peer-based benchmarking could be a valuable tool for leverage in media law reform. This requires [the citizenry] being well informed about best practice around the continent, and being able to signal to one’s national public that it is important not to lag behind.”

The report is being widely circulated in hopes of mobilising public opinion and to precipitate more activity in media law reform. Berger verbally presented it to a workshop of The African Editors Forum and promoted its review in African media journals. 500 delegates at the Highway Africa conference (the world’s largest meeting of African journalists) and 100 African journalism schools also received copies of the report.

An electronic (PDF) version of the publication can be found at: http://portal.unesco.org/ci/en/ev.p...