UCC ACTIONS ARE LAWFUL AND IN GOOD FAITH – Aimed at facilitating the development of a modern and sustainable communications sector in Uganda

The attention of the Uganda Communications Commission(UCC) has been drawn to an article by Mr. Daniel Walyemera that was published in the Daily Monitor of Monday, June 15, 2020, in which he makes several false, misleading and unsubstantiated allegations against the Commission.

The Uganda Communications Act No.1 of 2013, which established UCC was extensively debated by the Parliament of Uganda and the same was assented to by H.E. the President of Uganda.

According to section 5 of the Act, the statutory functions of UCC include to license, regulate and guide the provision of communication services in Uganda, as well as to receive, investigate and arbitrate complaints relating to communications services, and take necessary action, and to promote and safeguard the interests of consumers and operators as regards the quality of communications services in Uganda.

The same law empowers UCC to set standards, monitor and enforce compliance relating to content. Section 31 of the Act goes on to impose a statutory duty on every person not to broadcast any programme unless the programme or broadcast complies with the minimum broadcasting standards enshrined in schedule 4 of the same Act.

In its wisdom, Parliament went on to specify in schedule 4 of the Act that a broadcaster or video operator shall ensure that any programme which is broadcast on its communication platform is not contrary to public morality, does not promote the culture of violence or ethnic prejudice among the public, especially the children and the youth, in case of a news broadcast, the same must be free from distortion of facts, must not create public insecurity or violence.

The standards further impose a duty on broadcasters to ensure that their content is balanced to ensure harmony and where the programme is in respect to a contender for a public office, each contender is given equal opportunity on such a programme.

The said minimum broadcasting standards are legally binding guidelines carefully crafted to promote professionalism and harmony in broadcasting and they are not unique to Uganda. Our standards are not any different from the broadcasting standards in other countries, including Kenya, Tanzania and the United Kingdom.

For instance in Kenya, Regulation 19 of the Kenya Information and Communications (Broadcasting) Regulations, 2009, provides that a licensee shall ensure that no broadcasts by its station contains the use of offensive language, including profanity and blasphemy; presents sexual matters in an explicit and offensive manner; glorifies violence or depicts violence in an offensive manner; is likely to incite, perpetuate hatred, vilify any person or section of the community, on account of race, ethnicity, nationality, gender, sexual preference, age, disability, religion or culture of that person or section of the community.

Similar provisions are contained in the United Kingdom’s Ofcom Broadcasting Code of 2013.

In order to further make the standards simple and easily understandable by all broadcasters and the general public, UCC, in accordance with section 5(1)(x) of the Act, after extensive consultation with the sector, developed the Standards for General Broadcast Programming in Uganda. These standards adequately explain what each of the minimum broadcasting standards means, and these are freely accessible on the UCC website, and the same form part of each and every broadcaster’s license in Uganda.

It is therefore illusory for Mr. Walyemera or any other person to state that the standards which UCC enforces are vague and not in line with the law and the international best practice.

With respect to the World Express Programme of Endigyito FM, which the author focused his article on, it is important to note that UCC has previously received a number of complaints from concerned citizens about the subject programme. In accordance with its mandate under section 5(1)(j) of the Act, UCC duly engaged the radio station on which the impugned programme was being broadcast. Following an investigation, the Commission discovered that indeed the programme had gaps that amounted to breach of the Minimum Broadcasting Standards.

Contrary to Mr. Walyemera’s claim that UCC doesn’t respect the rules of natural justice, the radio station was engaged by the Commission in several meetings, some of which were attended by the presenter of the programme. The radio station and the presenter acknowledged their mistakes and duly apologised for the failure to comply with the standards.

UCC sees its broader role as that of facilitating the development of a modern and sustainable communications sector. It, therefore, doesn’t take pleasure in punishing its stakeholders but rather engaging them to improve communications services for everyone. For that reason, the modus operandi of the Commission has always been to engage the operators before taking any action. Our handling of this case has not been any different. The Commission has demanded assurances from the station that the programme will not continue to breach broadcasting standards and when it is convinced that adequate measures have been put in place, the suspension will be lifted.   

It is also not true that in investigating complaints, the Commission acts as the complainant, prosecutor and judge in the case, as alleged by Mr. Walyemera. In this particular case of World Express programme, one of the complainants happens to be Hon. Michael Tusiime, the Member of Parliament for Mbarara Municipality, who is well known to Endigyito FM. Merely because the complainant is a public figure does not however render the process through which his complaint was handled wrong.

The Commission treats all consumers as equal, and any viewer or listener of a broadcast can make a complaint. Being a politician or public figure doesn’t negate anyone’s right to be heard. The claim that the Commission is “evasive” when asked who has complained is preposterous, to say the least. The Commission runs a transparent consumer complaints management mechanism backed by a full-fledged Consumer Affairs Unit, and we always encourage dissatisfied consumers to complain for it’s a big part of our mandate.

Besides, the broadcaster has a right of recourse to the law if they are dissatisfied with the Commission’s intervention. Indeed, many have chosen that path. As an advocate, Mr. Walyemera himself has represented clients challenging the Commission in Courts of law.

In many cases, however, litigants have not been successful because the Commission has been able to demonstrate to Courts of law that it has acted in good faith, followed the law, observed the right to be heard, and followed the due process.

Therefore, if the writer feels strongly that the Uganda Communications Act 2013 “is in breach of several constitutionally guaranteed rights” as he claims, he has every right to seek redress from any appropriate forum, including Parliament or courts of laws.

On the law not passing the “foreseeability” test, we would like to assert that if a radio station allows a programme that is devoid of minimum checks and balances, editorial oversight or gatekeeping, it is would be obviously foreseeable that it might result in injury to third parties. Minimum broadcasting standards are meant to limit such incidents.

Requiring broadcasters to adhere to the minimum broadcasting standards and the laws of Uganda is a reasonably justifiable limitation to freedom of expression as envisaged in Article 43 of the Constitution of Uganda and in any other democratic society. Freedom of expression and the media is not an absolute freedom in our constitutional dispensation.

The framers of our Constitution were conscious that freedom of speech should have some restrictions. Freedom of speech cannot be a reasonable ground for anybody to encroach on another’s rights. The law seeks to protect everybody.

On some of the provisions of the law being “vague”, our position is that our broadcasting stakeholders understand what standards are as they form part of the terms and conditions of their licenses. More so, the regulations and broadcasting standards go an extra mile to explain how the desirable broadcasting content can be attained.

Lastly, Mr. Walyemera makes a case for the operationalisation of the Uganda Communications Tribunal, which is provided for under Section 64 of the Uganda Communications Act. For the record, UCC fully supports the establishment of the Tribunal as it would add yet another layer in the process of professionalising our communications sector.

UCC welcomes all possible support from willing stakeholders, including Mr.Walyemera, in reminding the powers that be to complete the remaining processes in the journey to operationalise the Uganda Communications Tribunal. We are hopeful that the communications tribunal will be operational sooner than later.

Notwithstanding the foregoing, it must be understood that the absence of the Tribunal doesn’t justify the breach of minimum broadcasting standards as laid out in the law. To wish the standards away without proposing a viable alternative is to advocate anarchy on the airwaves. Until the Tribunal is operationlised, any person aggrieved by a decision of UCC or the Minister of ICT and National Guidance may seek redress from other forums, including the mainstream courts of judicature.

UCC remains available to work with all stakeholders to spur the development of a robust communications sector in Uganda.

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