The Role and Place of Media, Civil Society and Academia in Safeguarding and Promoting

THE ROLE AND PLACE OF MEDIA, CIVIL SOCIETY AND ACADEMIA IN SAFEGUARDING AND PROMOTING HUMAN RIGHTS IN EAST AFRICA

Prof. P.J. Kabudi

Faculty of Law

University of Dar es Salaam

1. Introductory Remarks

This paper is a composite presentation on the role and place of the media, civil society and the academia in safeguarding and promoting human rights in East Africa. As much as the three may appear different and may deserve a distinct presentation they can be clustered together is the fact that all of them are non-state actors. The Role of non-state actors in the promotion and protection of human rights is critical and crucial in ensuring that the state and state actors respect human rights and are held accountable for any violation against human rights committed by them.

Some scholars have designated human rights as the great “credo” of the contemporary time.[1] Human rights discourse still elicits interest and remains a topical theme as it was in the 1980’s when all the East African states were either a one-party state or under military rule. It was a theme that dominated in the media, inspired the civil society and engaged the academia in the struggles that culminated in the re-introduction of multi-party politics and democratisation of authoritarian states. The new democratic dispensation has further opened space for the media, civil society and the academia contributing the human rights discourse and development in East Africa. This paper briefly examines the articulation of human rights in the East African Constitutions before discussing the role and place of the media, civil society and the academia in safeguarding and promoting human rights in East African countries of Kenya, Uganda and Tanzania.

It is a fact that Kenya, Uganda and Tanzania are not only geographical neighbours, but also share a lot of historical, political, social and cultural experiences and similarities. They have the same legal system based on Anglo-Saxon common law tradition. And, up to 1977 they shared the same highest court, which was the Court of Appeal for Eastern Africa. The abrupt demise of the Court of Appeal for Eastern Africa was prompted by the collapse of the East African Community which grouped together the three countries in a common market. However, despite the demised of the East African Court of Appeal its decisions are still binding authority in the respective countries through the doctrine of precedent. [2] Also up to 1970, they shared the same University of East Africa with university colleges at Makerere in Uganda, Nairobi in Kenya and Dar es Salaam in Tanzania. During that time the Faculty of Law, University College Dar es Salaam trained lawyers from the three East Africa countries. [3]

The new East African Community has been established by the Treaty for the Establishment of the East African Community comprising originally of Kenya, Uganda and Tanzania was signed in 30th November 1999. Although the Treaty has not re- established the Court of Appeal of Eastern Africa it has created the East African Court of Justice which has jurisdiction over the interpretation and application of the Treaty.[4] However unlike the former EAC the Treaty establishing the New EAC makes adherence to universally acceptable principles of good governance, democracy, the rule of law, observance of human rights and social justice to be a condition for a state to be a member of the Community.[5]

2. Constitutionalism and Human Rights

East Africa has not escaped the wave of change towards pluralistic forms of politics and constitutional order. The East African constitutional terrain has witnessed ebbing negative and positive developments in the protection and promotion of human rights. With the adoption of multi-party system, the East African countries have once again affirmed their recognition of liberal democratic principles. This includes one of the fundamental principles of liberal constitutionalism, the recognition and guarantee of the fundamental freedoms and rights of the individual.[6] Constitutional rights, as correctly pointed out by Goerlich “are not an isolated part of the constitution” but more to it “they are incorporated in it, hence, these rights are dependent on the perception of the general principles”.[7]

In a treatise on constitutions of the former British colonies, de Smith, elaborating on constitutionalism, commented as follows:

“A contemporary liberal democrat, if asked to lay down a set of minimum standards, may be very willing to concede that constitutionalism is practised in a country where the government is accountable to an entity or organ distinct from itself, where elections are held on a wide franchise at frequent intervals, where political groups are free to organise in opposition to the government in office and where there are effective legal guarantees of fundamental civil rights enforced by an independent judiciary; and he may not easily be persuaded to identify constitutionalism in a country where any of these conditions is lacking.”[8]

The same position is advocated by a Nigerian constitutional lawyer, Nwabueze, who emphasized that:

“There can be no doubt that the core and substantive element of constitutionalism is the limitation of government by a constitutional guarantee of individual civil liberties enforceable by an independent tribunal. Deriving from the fundamental values of society, values which, articulated in public opinion, express a society’s way of life and uphold its members’ personality, individual civil liberties are indeed the very essence of constitutional government.”[9]

The linkage of constitutionalism to human rights is one of the major feats in the development of modern democratic constitutions resting on two fundamental pillars that is limited government and guaranteed of individual rights and freedoms. Another African scholar, Mahmoud Ben Romdhane from Morocco points out that liberal constitutionalism or liberal democracy rests on four pillars. These are:

(1) individual freedoms;

(2) public freedoms (among which are the right to organise, associate and demonstrate as fundamental rights);

(3) people’s sovereignty through direct universal vote: and

(4) separation of powers (hence limitation of the executive). A limited government is one which is based on principles of democracy.

All these constitutional principles and doctrines that are ipso facto relevant for guaranteeing human rights are ingrained in all the four constitutions of the three East African states of Kenya, Uganda and Tanzania. They incorporate a Bill of Rights as well as the doctrine of separation of powers and the principle of rule of law, with all their attendant attributes, i.e, checks and balances.

Human rights borrowing from section 70 of the Constitution of Kenya which is a preambular clause to the Bill of Rights clusters freedoms and rights of the individual three groups:

(a) life, liberty, security of the person and the protection of the law;

(b) freedom of conscience, of expression and of assembly and association; and

However, human rights as currently conceptualised include also social, cultural and economic rights. These rights are provided for in the Constitutions in Tanzania and Uganda as part of the fundamental objectives and directive principles of state policy. In the case of Tanzania the Constitution is categorical that fundamental objectives and principles of state policy are not enforceable in a court of law.[10] Although fundamental objectives and directive principles of state policy are not justiciable, this part of the Constitution has played a significant role in the development of human rights jurisprudence in Tanzania.[11]

Socio-cultural and economic rights are being included in the Bill of Rights as it is the case with civil and political rights. The draft Constitution of Kenya also contains proposals for social, cultural and economic rights on their own right and not as part of fundamental objectives and principles of state policy.[12]

The following part proceeds to discuss the role and place of the media in safeguarding and promoting human rights.

3. The Role and Place of the Media

The basic tasks of the media in a democracy have been classified under three main headings[13]:

(1) The task of observing and informing primarily as a service to the public

(2) The task of participating in public life as an independent actor by way of critical comment, advice, advocacy and expression of opinion

(3) The task of providing a channel, forum or platform for extra media voices or sources to reach a self-chosen public.

The specific occupational tasks of the media are many. However they can be classified basic activities. These are discovery, collection, and selection of information; processing into news accounts; providing background and commentary; and publication.[14] Therefore for the media is required to advance democratic system and protect and promote human rights by[15]:

(1) Providing surveillance

(2) Forming opinion

(3) Setting the agenda of public discussion

(4) Acting as a watchdog

(5) Acting as messenger and public informant

(6) Playing an active participant part in social life

It is imperative for the discussion on the role and place of media in promoting and protecting human rights to be based on the constitutional provisions on the Right to Freedom of Expression. It forms one of most important factors in the development of political will and sustenance of democracy.[16] This includes also the promotion of independent judgment of government action and the enhancement of public order.

All the constitutions in East Africa have provisions providing for the freedom of expression. Freedom of expression is composed of four different components. These are freedom of opinion, freedom to receive ideas and information, freedom to communicate ideas and information and freedom from interference with individual’s correspondence. All together they provide for and guarantee the right to communication of ideas.

Freedom of the media or press is not expressly mentioned in the Constitutions of East Africa. Lack of such an express mention is redressed by the fact that realisation of the freedom to gather and disseminate information as guaranteed in these constitutions of necessity includes freedom of the media or press. Therefore, freedom of the media or the press is derived from the right to freedom of expression and it has developed to the extent of some scholars presenting it as a separate right.

The ownership of Media in East Africa is mainly divided in two groups. That is Government owned and private owned media. Public owned media that are not controlled by the Government but funded by public finances through Parliamentary budget allocations are yet to be established in East Africa. In all East African states radio stations until the late 1990’s was government owned and controlled. The same applied to television stations with exception of Mainland Tanzania which started with private owned television stations before the state established one recently. However since the 1990’s private ownership radio stations has been phenomenal especially with establishment of FM radio stations in different towns and areas of Tanzania. [17] The same applies to Kenya and Uganda where mushrooming of private radio stations has resulted in the founding of FM stations that have been so powerful and influential in Kenya and Uganda especially trough there call in programmes where listeners participate live in radio programmes. This has led to friction of such radio stations with the state where such live programmes have been used to criticise the Government in Uganda. In the case of Kenya it is claimed that some FM radio stations especially those broadcasting in vernacular languages were used to ferment violence after the last disputed General Elections in Kenya.[18]

The ownership of newspapers is the same like that of radio and television where private owned newspapers out number government owned newspapers. There are now more diverse newspapers in circulation catering for different interests and tastes of the readers. They vary in the aspects they cover ranging from social, economic and political issues to sports, leisure and gossips. This means newspapers are not homogeneous but heterogeneous just the society is.

Despite that diversity in ownership of the media still it plays a great role in the building of a democratic society and therefore in the protection and promotion of human rights. However, that does not apply automatically. The media has also been used to suppress human rights either by concealing or by deliberately distorting the truth depending on those who own or control them. Section of the media has played an important role as a forum in the struggles for democratic governance and human rights in East Africa. At the same time there was a section of the media which supported and justified the authoritarian rule in some of the East African states.

Therefore for the media to be able to play a positive role in safeguarding and promoting human rights it must believe in democratic systems of governance and in human rights. It must be imbued in human rights culture and practice in its editorial policy and coverage. It must abhor violation of human rights and work to expose such violations in its midst. It must fight against discrimination in the media.

The media has also been a victim of violations of human rights by the state. Governments of East Africa in varying degrees and instances have taken action that has curbed the freedom of the media. This has recently been witnessed by states enacting Media Acts that instead of promoting freedom of the media it has curtailed it.[19] The media has great role in the protection and promotion of human rights by exposing violations of human rights committed by the state and individuals. The major affront to human rights as much as it emanates from state action and that needs a bold media to expose such actions.