Dear Editor,
Yesterday (September 27), would have marked the deadline for local broadcasters to apply to renew their licences, under the Broadcast Act 2011.
I believe that we can mark today as the beginning of one of the most important struggles in the defence of our democracy in recent times. The Broadcast Act as it currently stands is outright sinister, and poisonous to free expression. I offer some of the more odious parts of this unfortunately enacted piece of legislation as example.
First of all, presidential prerogative in the appointment of all seven members of the Board of the National Broadcasting Authority (Section 4, Subsection 2 or 4.2) runs counter to the constitutional imperative towards a more inclusive democracy, even with the token allowance of the Leader of the Opposition to nominate one member (4.3). I would submit that while the executive President is free to demonstrate a clear ideological bias in his selection of his cabinet for his government, the tendency to overwhelm state boards and councils with government sycophants and sympathisers, to the exclusion of professionals, indicates that the PPP’s aim is not, ironically enough, progressive governance but totalitarian control.
At present, the broad spectrum of background expertise the broadcast law makes contingency for (ICT, broadcasting, law, performing arts, literature, science, finance, accountancy, administration, and public service) is woefully under-represented in the composition of the current GNBA board. The President’s recent statement therefore, that he thinks what is “important” in the selection of the Board was a legal background, shows a shocking ignorance of the provisions of this crucial piece of legislation – he could equally have made a case for a board made up almost entirely of writers or actors since the law, by his logic, provides for this.
I can cite easily a half dozen other examples of where the Broadcast Act runs clearly counter to the basic tenets of a functional democracy but space does not permit me to elaborate on them. Perhaps the most perfidious section of the Broadcast Act, however, is tucked away in Section 10 (Confidentiality), which reads in its entirety.
“10.(1) No member, officer, or employee of the Board shall, without the express written consent given by or on behalf of the Authority, publish or disclose to any person, otherwise in the course of his duties, the contents of any document, communication or information which relates to and which has come to his knowledge in the course of his duties under this Act.
“(2) Any person who, being actually or constructively aware that the information referred to in subsection (1) was published or disclosed without authority, knowingly receives that information, commits an offence and is liable, on summary conviction to the penalty specified in section 44.
“(3) If any person having information which in his actual or constructive knowledge has been published or disclosed in contravention of subsection (1) unlawfully publishes or communicates any such information to any person he commits and is liable on summary conviction to the penalty specified in section 44.”
Why is this particularly dangerous? First of all, the burden of penalty in the cases of breach of confidentiality – except in instances of national security – is usually placed upon the person communicating the information, not the person receiving or publishing it. In the Broadcast Act, even as 10.1 forbids anyone in the Authority from breaching confidentiality, Section 11 (Protection of members) protects these people from prosecution. The persons receiving confidential information, however, faces prosecution and the “penalty specified in section 44.”
Section 44 (Penalties for other offences): “Any person who contravenes any provision of this Act or any subsidiary legislation commits an offence and is liable on summary conviction, where no penalty is prescribed, to a fine of two hundred thousand dollars and imprisonment for six months.”
This section, in short, specifically targets both investigative journalists (10.2) as well as well as publishers and broadcasters (10.3), from digging into the affairs of a National Broadcast Authority which can – among other things – sell ‘services’, make and profit from investments, acquire property and accept donations (13.1.[d-f]), by threatening them with a ponderous fine in addition to a hefty prison sentence. Journalists should therefore literally, to adopt a local colloquialism, “frighten them, the GNBA, like six months in jail.”
A wise man once made one of his literary creations pronounce that, “The law is an ass.” The continued vesting of the President with the powers of the Minister of the Information, the inherent dangers notwithstanding, makes for some inane circularity as 5.2 illustrates: “The President, on the advice of the Minister, may terminate the appointment of any member…” And the irony of some sections of the law with regard to the reality of the media environment in Guyana is often glaring. The Act forbids any person (19 [b]), trust or company established under the Companies Act (Cap. 89:01) – the only entities eligible for a licence (23.1) – from owning or controlling more than twenty- five per cent of the broadcast sector (23.1.[b.iii]).
The National Communications Network (NCN), a subsidiary of NICIL incorporated under 89:01, enjoys a 100 per cent ownership and control of radio broadcast in Guyana, has by far the largest area coverage of television, and raked in $500 million last year in advertising, (more than all other television stations combined) even while enjoying a healthy government subvention of another half billion dollars from 2008-2012. There is no serious formula that the GNBA can come up with that does not have NCN Inc owning and/or controlling far more than “twenty five percent of the broadcasting sector.” The GNBA might therefore be legally bound to break up NCN and/or reduce its signal range in order to ensure that it is in compliance with the Broadcast Act.
Finally, and this relates to the state broadcaster again, during the recent NCN debate on corruption, the disgustingly raucous behaviour of the double portfolio Minister, Irfaan Ali, prompted panellist Chris Ram to indicate that he would leave the set should the Minister’s blustering continue; additionally, we can note, in addition to this, the time-consuming verbosity of Minister Ali and AG Anil Nandlall, the skewed comments supposedly coming in from the Internet, and the fact that the panel was weighed heavily in favour of the government.
As the producer of the programme, and the station on which it was broadcast, NCN would have been liable to at least some sort of censure – had the GNBA been in place – since the Authority is tasked with ensuring, under Section 32 (Guidelines for issue of license) that: “(i) all programmes should be fair and balanced in content…”; (j) programmes dealing with controversial public policy or matters of political or industrial controversy must meet standards of fairness, balance and accuracy…”; and finally (Minister Ali may wish to take note), “(n) all public comment, whether by way of interview, discussion, debate or phone-in conversation should be well-mannered and courteous; interviewees must always be given a fair chance to fully respond to questions and interviews should not be aggressive, hectoring or rude.”
My humble advice to the parliamentary opposition (inclusive of the AFC which originally supported the Broadcast Bill in its passage through the National Assembly) is to judiciously review every single letter of the Broadcast Act 2011 and to doggedly seek its repeal with the view towards a more democratic and responsible piece of legislation to govern the broadcast sector.
Yours faithfully,
Ruel Johnson
