WEST AFRICA REVIEW ISSN: 1525-4488 Issue 6 (2004)

Chris Ogbondah

Introduction

After being governed by military autocracies for several years, Ghana and Nigeria -- two West African countries that share a lot of tradition in common -- have today made the transition to political democracy. Ghana was ruled by the military under Generals Joseph Ankrah and Akwasi Afrifa from 1966 to 1969; General Kutu Acheampong from 1972 to 1978; General Fred Akuffo from 1978 to 1979 and Fight Lieutenant Jerry Rawlings, June 1979 to September 1979. The country was once more ruled under Jerry Rawlings’ military dictatorship from 1981 to 1993. Thus, between the premier military coup in February 1966 and the transition to civil rule in 1993, Ghana was ruled by military regimes for about twenty-one years. Accounts of the military’s intervention in Ghana’s politics are provided by Pinkney (1972), Ocran (1977 & 1968), Pellow and Chazan (1986), Afrifa (1966) and Austin and Luckham (1975). Also, see Dowse (1975), Bebler (1973) and Lefever (1970).

Nigeria was governed by the military under General Johnson Aguiyi-Ironsi (January 15, 1966 to July 29, 1966); General Yakbu Gowon (July 29, 1966 to July 29, 1975) and Generals Murtala Mohammed and Olusegun Obasanjo (July 29, 1975 to October 1, 1979). The country was further ruled by military dictatorships under General Muhammadu Buhari (December 31, 1983 to August 25, 1985); General Ibrahim Babangida (August 25, 1985 to August 26, 1993); General Sani Abacha (November 17, 1993 to June 8, 1998) and General Abdulsalaam Abubakar (June 8, 1998 to May 29, 1999). In all Nigeria was governed by the military for about twenty-nine years. Accounts of the military’s interventions in Nigeria’s politics are analyzed by several writers, including St. Jorre (1972), Kirk-Green (1971), Luckman (1971), Dudley (1982), Agbese and Kieh (1992), Olorunsola (1977) and Oyediran (1979). Other writers are Falola and Ihonvbere (1985), Ademoyega (1981), Ejoor (1989), Garba (1982) etc.

Following the Cold War years of autocratic rule in many African states, the military dictators were forced by the post-cold war democratic transitions across the globe and the effect of information technology-induced access to information within and outside the different states to relinquish political power to democratic form of governance in Ghana and Nigeria in 1993 and 1999 respectively.

Objective

This essay attempts to make a critical analysis of recent constitutional and legislative reforms that facilitate freedom of expression and mass media development under the current democratization process in Ghana and Nigeria. Given the recent constitutional and legislative changes that have taken place in both countries, are there problems that seem to persist, and therefore ought to be addressed? This is among the major questions addressed in this paper.

The redeeming value of a study of this nature is that it provides data that can be used to gauge the extent of democratization in the two countries. If we accept the premise that freedom of expression is one of the cornerstones of a democracy, then we can conclude that an analysis of constitutional and legislative reforms that facilitate freedom of expression and press freedom can be used as one measure to examine the extent of democratization in a country.

The essay begins with an overview of the current democratization in Africa with special emphasis on Ghana and Nigeria. Next, it examines recent constitutional reforms that facilitate freedom of expression and mass media development. The data for each country is presented and compared. This is followed by a critical analysis of persistent problems – for the press -- that ought to be addressed as part of the overall process of democratization. Lastly, a discussion of recommendations on how persistent problems for the press can be addressed concludes the paper.

Overview of the Democratization in Africa

The current democratization in Ghana and Nigeria is germane to the on-going tidal wave of re-democratization in Africa. It has been described as a new “wind of change” (Diamond, 1998), “revival of democracy” (Southall and Wood, 1996), “re-democratization of Africa” (Decalo, 1992; Jeffries and Thomas, 1993), “second liberation” (Ihonvbere, 1997), “second wave of democratization” (Hyden and Okigbo, 2002), “springtime of Africa” (Martin, 1993) and “new political pluralism” (Wiseman, 1993). For Young (1998) it is the “third wave” of democratization, and perhaps also in reference for example, to the democratic changes that occurred simultaneously in Ghana and Nigeria in 1979. Kunz (1991), Press (1999), Anglin (1990), Decalo (1992), Obasanjo and Mosha (1993) and others have observed that the collapse of the former U.S.S.R.¹ in 1991 catalyzed these political changes in Africa. President Omar Bongo of Gabon underscored this point.²

The on-going political changes are due to the failures of erstwhile military dictatorships, authoritarian one-party governments and socialist regimes in Africa to fulfill economic promises to improve the peoples’ standard of living and their security. As Newbury (1994) correctly observes:

Frustrated by declining economies and the failures of incumbent governments, people from many different social strata have called for an end to authoritarian rule. Events in the Eastern Europe have served as a catalyst, and donor pressures have sometimes acted to facilitate such movements; but the real impetus for change arises from internal struggles which have been incubating for several decades (1).

Today, pro-democracy forces in Ghana, Nigeria and elsewhere in Africa are unrelenting in their push for full-fledged democratic transformations. This push intensifies because economic aid by most donor nations is now inextricably linked to political institutional reforms (Boafo-Arthur, 1999).

These political reforms in Africa began with the 1990 National Conference in Benin (Diop and Diouf, 1991; Knight, 1991, Nzouankeu, 1993; Robinson, 1994; Udogu, 1996). Mathieu Kerekou, the then military leader of Benin, convened the gathering to identify and proffer solutions to the country’s myriad of socio-economic and political problems (Heilbrunn, 1993). Notably enough, the conference of 488 representatives of various constituents in the country declared its autonomy within five days of deliberations, assumed an executive role and suspended the national constitution. It dissolved the National Assembly, adopted plans for multi-party elections, drafted a new constitution and made recommendations for legislative and executive elections.

The Benin spirit was emulated by democratic forces in other parts of the sub-Sahara region, setting off the process of democratization that would spread rapidly like wild fire. For instance, between 1990 and early 1995, there were multi-party elections in thirty-five of sub-Saharan Africa’s fifty nations (Ottaway, 1995). These rapid changes led Diamond (1998) to conclude that, “The pace and spread of political change in Africa since 1989 have been breathtaking” (263).

Ghana’s Democratization Process

It is difficult to pinpoint the time Ghana’s current democratization began. This is because there were two attempts at democratic governance between the periods of the premier coup and when the present Republic came into being. One was made between 1969 and 1972 when the country was governed by an elected government headed by Dr. K.A. Busia of the Progress Party (PP). The other was between 1979 and 1981 when the country was governed by an elected government headed by Dr. Lilla Limann of the People’s National Party (PNP).

However, the new political formation may have started with Jerry Rawlings’ promise in 1987 to establish a new system of democratic governance at the local [grassroots] level with two-thirds elected District Assemblies that would eventually be followed by democratization at the center. Ayee (1996) noted that one of the steps the then ruling Provisional National Defence Council (PNDC) took towards political change in the country was to organize non-partisan district assemblies’ elections between 1988 and 1989. Ayee (1996) said, “The elections of 1988/89 and again 1994 seem to ‘democratize’ local government in Ghana, because for one, elected DA members were for the most part genuinely ‘representative’ of their very small electorates” (478).

July 1990 marked another epoch-making event in Ghana’s transition to democracy -- Rawlings initiated a series of regional seminars under the auspices of the then ruling National Commission for Democracy (NCD) to discuss the form and nature of a future democratic polity in the country. The period witnessed the formation of the first major opposition force, the Movement for Freedom and Justice (MFJ), a loose alliance of former political associations of the Second and Third Republic pro-democracy groups. As Jeffries and Thomas (1992) have noted, the MFJ initiated demands for the then ruling PNDC to draw up a timetable for a new constitution as well as to lift the ban on political activities. The MFJ’s other demands were for the release of political detainees, and the granting of amnesty for all exiles.

Rawlings met these demands as he did not want to be seen as an obstacle to democracy. In April 1991, he accepted a report of the NCD, “Evolving a true democracy,” that underscored the need for multi-party democracy and a representative form of government that would guarantee human, economic, civil and other rights. By the end of July 1991, the PNDC established a quasi-autonomous committee made up of constitutional experts to draft a new constitution that would restore multi-party politics. By the end of 1991, the draft constitution was drawn and sent to a Consultative Assembly. An Interim National Electoral Commission (INEC) was established in November 1991 with the responsibility to conduct the presidential and parliamentary elections in November and December 1992.

The PNDC abrogated several obnoxious military decrees that previously denied the citizens the right of habeas corpus, freedom of movement, freedom of the press etc. Joseph (1993) points out that, “by election day the number of independent newspapers that freely criticized Rawlings and his government exceeded those which largely reflected official viewpoints” (46). Furthermore, between March and October 1992 the PNDC released about seventy political prisoners, and it restored the newspaper license of The Catholic Standard (Jeffries and Thomas, 1992).

Even though the government took these steps towards instituting some democratic norms, it cowed private newspapers that dared criticize its actions. For example, George Naykene, editor of the Christian Chronicle, was prosecuted and jailed for eighteen months for criminal libel (Oquaye, 1995; Ofori, 1993). Oquaye (1995) said: “While the state newspapers took a hard pro-PNDC stand, private papers were harassed. Their offices were closed down, vandalized or burnt. In one instance, the proprietor of the Free Press (Thompson) and his editor (Kugblenu) were arrested, detained and tortured” (263).

Another landmark event in the political transition program was the presentation of the draft constitution to the Ghanaian people in a referendum on April 28, 1992 (West Africa, May 11-17, 1992, 809). The document was overwhelmingly endorsed. On May 1, 1992, the ban on part1525-4488 y politics was officially lifted. This was followed with the enactment on May 18, 1992 of the Political Parties Law that established the conditions for the registration of political parties.³

Five political parties that were registered contested the presidential elections⁴ held on November 3, 1992 with about 6o per cent voter-turn out. Rawlings won 58.3 per cent of the vote compared with 30.4 per cent won by Professor Adu Boahen, his nearest rival (Joseph, 1993; Jeffries and Thomas, 1992), a figure that Oquaye (1995) has strongly disputed. Ghana has had two more elections: 1996 and 2000. Rawlings was reelected in 1996, and thus served out the maximum two terms of four years each provided for in the Constitution. In an election largely judged by the press and external observers as free and fair, John Kufour won the 2000 election under the umbrella of the New Patriotic Party (NPP) against Rawlings Vice-President Atta Mills of the Convention People’s Party (CPP).

Constitutional Reforms and Press Freedom in Ghana

As a consequence of democratization in Ghana, the following constitutional and legislative reforms have been introduced to facilitate freedom of the press and mass media development in Ghana to further help consolidate democracy in the country.

Press Freedom Provisions

While freedom of the press has always been provided for in the constitution of Ghana, recent constitutional reforms help strengthen the right of freedom of expression and of the press. Sub-section 1(a) of Article 21 of the Constitution provides that: “All persons shall have the right to – a) freedom of speech and expression, which shall include freedom of the press and other media...” (Flanz, 1998, 51; Constitution of the Republic of Ghana, 1996, 23). The Constitution also guarantees the freedom of “other media,” to include books, newsletters, pamphlets, leaflets, fliers, posters, paintings, graphics, songs, films, town criers and other forms of folk or traditional communication. In Article 18 of the Constitution the citizens are guaranteed the right of private media ownership. It states: “Every person has the right to own property either alone or in association with others. No person shall be subjected to interference with the privacy of his . . . correspondence or communication . . . ” (Flanz, 1998, 45). Lastly, the Constitution also guarantees the right of assembly -- a form of “symbolic expression,” consistent with the cultural practices in Ghana and many African states.

Anti-Censorship Provisions

An important reform in the Ghanaian constitution that ensures freedom of expression is the provision against press censorship, governmental interference, control of the media and harassment of journalists. Article 162(2) guarantees that “there shall be no censorship in Ghana.” Sub-section 3 of Article 162 provides that:

There shall be no impediments to the establishment of private press or media; and in particular, there shall be no law requiring any person to obtain a license as a prerequisite to the establishment or operation of a newspaper, journal or other media for mass communication or information (Ibid, 140).

Furthermore, Section 4 of Article 162 provides that “Editors of newspapers and other institutions of the mass media shall not be subject to control or interference by Government, nor shall they be penalized or harassed for their editorial opinions and views, or the content of their publications” (Ibid). Thus, even though Article 167 of the Constitution provides for the establishment of a National Mass Media Commission, it unequivocally states that the purpose of the commission is “to promote and ensure the freedom and independence of the media for mass communication or information” (Ibid, 142). As a result, Section 167 (c) vests a duty on the commission “to insulate the state-owned media from government control . . . ” (Ibid). The Ghanaian constitution as amended in 1996 now has a new provision that excludes political office holders from membership of the national media commission. It provides that, “A person who is a founding member of a political party, is a leader or a member of its executive or holds any office in a political party shall not be qualified to be a member of the commission” (Ibid, 241). For a country that witnessed the deleterious effects of governmental actions against the press -- as documented by Anokwa (1997), Ekwelie (1978), Hachten (1975) and Twumasi (1980) -- these constitutional reforms in Ghana are noteworthy and clearly indicate that Ghanaians are serious about consolidating their democracy and forever turn away from military or civilian authoritarianism.

Access to Government-Owned Media

To further enhance dialogue and democratic debates, Section 163 of the Ghanaian Constitution provides that, “All state-owned media shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions” (Flanz, 1998, 140). This type of constitutional reform is somewhat similar to the “Fairness Doctrine” enunciated by the U.S. Supreme court in 1968 to expand the space for the expression of diverse political views in the broadcast industry.

Section 55(11) of the Constitution reinforces the provisions in Section 163. It provides that, “The state shall provide fair opportunity to all political parties to present their programmes to the public by ensuring equal access to the state-owned media.” Section 12 states that, “All presidential candidates shall be given the same amount and space on the state-owned media to present their programmes to the people” (Yankah, 1997, 15) an important reversal of earlier practice that not only allowed government owned media to virtually shut out the views of opposition parties, but to stifle discussion and consequently made it difficult to hold government accountable for policies that may not be in the interest of the citizens.

Human Rights Commission

The new Constitution of Ghana provides for the establishment of a human rights commission. It is charged with the responsibility to investigate complaints of violations of fundamental human rights. According to the provisions of Section 218(a) of the Constitution, the duties of the commission, among others is to investigate complaints of violations of freedoms, injustice, and corruption, abuse of power and unfair treatment of any person by public officers in the exercise of their official duties. The commission is further charged with the duty of educating the citizens of their fundamental human rights, and taking appropriate action to call for the remedying, correction and reversal of instances of human rights abuses perpetrated on the citizens (Flanz, 1998).

Mass Media Registration and Licensing

One of the recent legislative changes in Ghana is the abrogation of the 1963 Newspaper Licensing Law. The law was first repealed in 1970 but re-introduced in March 1973 by the military regime of General Acheampong. It was again abrogated in 1979 during Rawlings’ regime; and subsequently, re-introduced by Rawlings in 1989. However, the law has now been expunged from the statute books. Article 162(3) of the new Constitution now makes it an offence for anyone to require newspaper licensing as a prerequisite for publication. It provides that, “There shall be no impediments to the establishment of private press or media; and in particular, there shall be no law requiring any person to obtain a license as a prerequisite to the establishment or operation of a newspaper, journal or other media for mass communication or information” (Flanz, 1998, 140).

Liberalization of Electronic Media Ownership

Liberalization of the electronic media is another recent legislative reform that has taken place in Ghana. Hitherto, the electronic media industry was virtually owned and controlled by the government but as van der Veur (2002) points out, the state reversed its restrictive licensing laws in 1991. Effective deregulation of broadcasting began in July 1995 with the granting by the Ghana Frequency Registration and Control Board of authorization for a number of urban-based radio and television stations (Yankah, 1997). Soon after, five private stations, four in Accra and one in Kumasi began broadcast operations (Ibid). In 1996, ten new community radio stations were approved. In 2004, there are at least thirteen private radio stations in Accra metropolis alone. This type of legislative reform expands the space for the expression of pluralistic view points in the broadcast media.

The Ghanaian Constitution also provides for private print media ownership. As a result, several new publications have appeared on the newsstands. The telecommunication industry has also been liberalized. All these reforms have created a multiplicity of media outlets and voices, and therefore, an enabling atmosphere for freedom of expression and democracy.

Anti-Coup Provisions

An important constitutional reform is that which makes it an offence for anyone to topple an elected government by force. Section 3 (a) and (b) of Chapter One of the constitution provides that:

Any person who by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or aids and abets in any manner any person referred to in paragraph (a) of this clause; commits the offence of high treason and shall, upon conviction, be sentenced to suffer death (Kludze, 1993, 28; The Constitution of Ghana, 1992, 2.).

It further provides that all citizens of Ghana shall have the right and duty at all times, to defend the constitution, and in particular, to resist any person or group of persons seeking to overthrow or suspend the constitution. The constitution also provides that it is the right and duty of all citizens of Ghana "to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated" by any person or group of persons. The Constitution further outlaws toppling an elected government by providing that: "Any person or group of persons who suppresses or resists the suspension, overthrow or abrogation of this Constitution...commits no offence."

Section 6 of the constitution provides that where a person who resists or suppresses the overthrow of the government is punished for doing so, "the punishment shall, on the restoration of this Constitution, be taken to be void from the time it was imposed and he shall, from that time, be taken to be absolved from all liabilities arising out of the punishment." The Constitution of Ghana views toppling the government so seriously that it provides for [pecuniary] compensation for any citizen who suffers any punishment or losses as a result of resisting or opposing the overthrow of the constitution. It states that a suit can be brought to the court by such persons or on their behalf for the compensation. Section 7 of the constitution provides that:

The Supreme court shall, on application by or on behalf of a person who has suffered any punishment or loss to which clause 6 of this article relates, award him adequate compensation, which shall be charged on the Consolidated Fund, in respect of any suffering or loss incurred as a result of the punishment (Kludze, 1993, 29).

This constitutional reform is noteworthy because it institutionalizes and legalizes civil disobedience against military or forceful overthrow of a democratically elected government. Thus, it discourages members of the armed forces from plotting coups. In this way, it can be argued that this legal reform would help to entrench democracy and democratic norms such as civil liberties and fundamental human rights including, freedom of expression. The value of this form of constitutional change can also be understood when one remembers that it was under military rule that the most human rights abuses were unleashed against journalists and the media industry.

Nigeria’s Process of Democratization

It is also difficult to pinpoint the time Nigeria’s current democratization commenced. This is because like Ghana, the era of military rule witnessed short-lived experiments of democratic governance. As Agbese and Kieh (1992) noted, several military regimes in Nigeria conducted experiments in democratization. For example, as far back as October 1, 1975, General Murtala Mohammed announced a five-point program aimed to return the country to democratic governance. He also set up a Constitution Drafting Committee (CDC) of fifty-one persons.⁵ On October 6, 1977 General Olusegun Obasanjo who succeeded Mohammed as head of the then military junta, inaugurated a Constituent Assembly composed of 203 elected and a few appointed members to consider the Draft Constitution. The country returned to a democracy on October 1, 1979, although the military dismantled it on December 31, 1983.

When General Ibrahim Babangida came to power on August 27, 1985, he too initiated a return-to-civil-rule program. As Ake (1994) pointed out, on January 13, 1986, the Babangida regime started “an elaborate transition to civil rule by setting up a Political Bureau to recommend a form of civilian government for Nigeria . . . .” (11). In 1987, the regime set up a Constitution Review Committee (CRC) to review the 1979 Constitution in accordance with the recommendations of the Political Bureau. In 1988, the military government established a Constituent Assembly that was made up of 450 elected and 111 nominated members to deliberate on the Draft Constitution. But as Ake (1994) observed, “what came out of all this elaborate process with a great deal of civilian input and public debate was a highly illiberal Constitution which gave the President an inordinate amount of power” (Ibid).

The regime lifted the ban on political activities in 1989, and in that same year, it established a Constitution Drafting Committee that drafted a new constitution. It formed a National Election Commission (NEC), and by fiat created two political parties – National Republican Convention (NRC) and Social Democratic Party (SDP). Agbese (1990) noted that the highlights of the democratization process under the Babangida regime included the “adoption of a new constitution, the imposition by the government of two political parties, the disqualification of ‘old-breed’ politicians and other ‘undesirable elements’ from participating in politics” (32).

But the political transition was flawed by several contradictions. For example, in September 1992, 23 candidates participated in the presidential primary elections. But on October 16, 1992 the government nullified the results of the elections. It said there were numerous electoral mal-practices.⁶ Thus, if the results of the elections were not nullified, the real presidential election would have been held on December 5, 1992. Hand over ceremonies to a democratic government would have taken place on January 2, 1993. When presidential elections were eventually conducted on June 23, 1993, the government annulled the result, and once more shifted the hand over date to August 27, 1993. This was why Okome (2001) pointed out that “in classic exercise of the military veto, General Babangida unilaterally cancelled the results of the final, presidential elections” (38).

Public protestation -- in Nigeria and abroad -- against the government’s annulment of the result of the presidential election forced General Babangida to resign from office as head of state on August 26, 1993. But prior to his departure from office the military ruler set up an Interim National Government (ING) whose members he unilaterally picked. The interim government was toppled in a coup led by General Sani Abacha, the only military officer in the ING. Like Babangida, Abacha set up a program of democratization that was characterized by contradictions. In 1995, for example, the government convened a Constitutional Conference to draft a constitution that would replace the 1989 Constitution. It completed its work, and adopted a draft constitution on April 25 that year. As Ogbondah (2000) observed, when the Constitutional Conference completed its work, and recommended that the military should return the country to a democracy in January 1996, General Abacha did not welcome that recommendation. Instead, he schemed through numerous dubious and hidden political agenda to succeed himself as civilian president.

He deployed a combination of weapons including blackmail, threats, intimidation, harassment, brute force, and money to keep political institutions and foes under his control. This was why several presidential aspirants, including, Adamu Ciroma, Umaru Shinkafi, Bamanga Tukur, Solomon Lar and the so-called progressives announced that they had withdrawn from the transition program.⁷ General Abacha also funded and literally controlled the affairs of the five political parties set up for the promised transition: United Nigeria Congress Party (UNCP), Congress for National Consensus (CNC), Grassroots Democratic Movement (GDM), National Centre Party of Nigeria (NCPN) and Democratic Party of Nigeria (DPN). Thus, when local government and national assembly elections were held in March 1997 and April 1998 the winners were candidates that Abacha had cleared to win. By the end of April 1998, all the five registered parties endorsed General Abacha as the only candidate for the presidential election scheduled for August that year. The presidential election did not hold because Abacha passed away in June of 1998. Subsequently, on assumption of power following the death of Sani Abacha, General Abdulsalam Abubakar called the results of all previously conducted elections. As part of his own political transition program, General Abubakar on June 15, 1998, released several well-known political detainees, including General Olusegun Obasanjo. On June 24 1998, he released many more political prisoners.⁸

On September 7, 1998, Abubkar authorized the release of the 1995 Draft Constitution that was never made public by Abacha. On November 11 that year, Abubakar established a Constitution Debate Coordinating Committee (CDCC) that was, among other things, asked to pilot a debate on the new constitution, collect, collate and co-ordinate views and recommendations canvassed by several individuals and groups. The committee invited memoranda from the public, organized debates, held special hearings and traveled to some sites to listen to views from different groups. However, the entire constitution-making process was flawed because as Ihonvbere (2001) points out:

The committee never tried, and was not encouraged to directly engage the well-organized opposition such as the National Democratic Coalition (NADECO), the United Action for Democracy (UAC), the Joint Action Committee of Nigeria (JACON), the Campaign for Democracy (CD), and other organized constituencies such as students, labour, the human rights community, and women. In short, the distorted and compromised process that culminated in the constitution ignored both the structural issues that have bedeviled the country’s ability to enthrone a truly accountable, transparent, and democratic political order (24).

Kalu (n.d.) also points out that the “six-week time frame allocated to the Constitution Debate Coordinating Committee (CDCC) in 1998 to draft a new Constitution for Nigeria is evidence of the extent to which the Nigerian leadership misunderstands the enormity of the responsibility of the transition from military to civilian government for Nigeria and Nigerians” (59). Elections for the National Assembly were held on February 20, 1999. They were followed by presidential election on February 27 that year. Olusegun Obasanjo, retired military general won the presidential election with 62.8% of the votes. Obasanjo’s government was sworn-in on May 29, 1999.

The process of democratization in Nigeria has been well analyzed by several scholars, including Agbese (1999), Enemuo (1999), Ihonvbere (1999), Onwudiwe (1999), Eke (1999), Soremekun (1999) and Olufemi (1999). Others are Ibrahim (1999), Lincoln (1999), Amuwo (1999), Kew (1999), Obadere (1999), Soyinka-Airewele (1999) and Fayemi (1999).

Constitutional Reforms Press Freedom in Nigeria

Nigeria has introduced the following constitutional reforms that facilitate freedom of the press and mass media development.

Press Freedom Provisions

The right of press freedom is guaranteed in Section 39(1) of the 1999 Constitution. It provides that, “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference” (Supplement to Official Gazette Extraordinary, Federal Republic of Nigeria, May 5, 1999, A899). Sub-section 2 provides for the right of private ownership of means of communication and the press. It states that, “. . . every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions” (Ibid).

Freedom of Information Act

The National Assembly is in the process of enacting a Freedom of Information Act. A bill titled, “The Freedom of Information Bill” was introduced in 1999, has undergone two readings, but continues to be slowed by soft opposition by the executive branch on account of the potential for the law to grant foreigners access to sensitive information that might compromise national security. When enacted, the law would guarantee journalists access to government documents and record as well as enhance the right of the press to carryout their functions.

Human Rights Commission

Another notable reform is the establishment of a human rights commission. The commission was set up under the provisions of Decree No. 22 of 1995 to deal with all matters relating to the protection of human rights, and to monitor and investigate all alleged cases of human rights violation. It is charged with the responsibility to make appropriate recommendations to the Federal Government for the prosecution and such other actions as it may deem expedient in each circumstance. Its other duties include making reports on the state of human rights protection in the country to the National Assembly. By 2001, the commission had received 557 complaints of rights abuses, and in 2002, it issued one of its annual reports that detailed extra-judicial killings by state police, arbitrary arrest and detention of citizens, and harassment of journalists (Committee for the Defence of Human Rights, 2002). The existence of the commission helps discourage the utilization of extra-judicial and arbitrary actions by state security agents against journalists and political critics.

Liberalization of Electronic Media Ownership

Another noteworthy legislative reform that has been introduced in Nigeria is the liberalization of the broadcast industry – a departure from the past when the industry was owned and controlled by the state. Liberalization of broadcast industry began in 1992 with the enactment of the “Electronic Privatization Decree” 1992. The law empowers the Nigerian Broadcasting Commission (NBC) to issue licenses for private broadcasting. Section 2(1b) of the law provides that the commission will be responsible for “receiving, processing and considering applications for the ownership of radio and television stations including cable television services, direct satellite broadcast and any other medium of broadcasting” (Supplement to Official Gazette Extraordinary, Federal Republic of Nigeria, September 4, 1992, A316). By 1995, the commission had issued about 114 licenses to private radio, television and cable services (Ogundimu, 1996). There has been an increase in the number of licenses since 1995, even though many of the private stations are yet to go on air or remain on air due to financial and technical constraints. For example, in October 1999, the NBC sent thirteen private broadcasting operators partly or wholly out of business for failing to pay their license fees (The Guardian, October 5, 1999). However, some of those stations that have succeeded to go on air are doing well. For example, Africa Independent Television (AIT) which pioneered private radio broadcasting in the country now has broadcast facilities and structures in several cities outside Lagos. The cities include Port Harcourt, Kano, Jos, Gombe, Agenogode and Ogarifo (see The Guardian, Oct. 27, 2003). Liberalization of broadcast industry in Nigeria has been analyzed by Ajia (1994), Dokpesi (1997), Ojeba (1997), Ogundimu (1997) and (Onwumechili, 1996).

Anti-Coup Law

To forestall the historical tendency of military intervention in Nigerian politics, the Senate on November 15, 2001, passed a bill that makes a coup d’etat a constitutional offence. The law punishes coup plotters with jail terms even when they are out of power (Vanguard, November 16, 2001). The bill titled, “The Prohibition of Unconstitutional Take Over of Government,” provides for a life jail sentence for anyone who participates in a forceful overthrow of the government. This is in addition to a 14-year jail sentence for anyone who serves in such an illegally constituted government. The new law strengthens the provisions of Section 1(2) of the 1999 Constitution which states that:: "The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution" (Supplement to Official Gazette Extraordinary, Federal Republic of Nigeria, May 5, 1999, p. A855).

This constitutional reform is a milestone because it has potentially institutionalized and legalized civil disobedience against a forceful overthrow of democratically elected governments. Viewed against similar provision in the Ghanaian Constitution, this provision pales in comparison to the activist resistance to coup in the Ghanaian Constitution. It thus however, discourages members of the armed forces from plotting coup as a strategy for leadership transition in Nigeria, and therefore, helps the process of consolidating democracy and democratic norms such as civil liberties and fundamental human rights especially, freedom of expression.

Persistent Problems for the Press

Even though Ghana and Nigeria have made noteworthy constitutional and legislative changes that facilitate freedom of expression and mass media development, there are problems that seem to persist. For example, while the constitutions provide for the right of freedom of expression and press freedom, these rights are however derogable or made subject to clawback measures that in practice weaken or make the provisions vulnerable. For example, while Section 39 (1&2) of the Nigerian Constitution provide for the right of freedom of expression, this right is almost taken away by the provision of Sub-sections 3 (a) and (b that state: “Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society - (a) for the purpose of preventing the disclosure of information received in confidence . . . or (b) imposing restrictions upon persons holding office under the government of the Federation or of a State . . . .” (Supplement to Official Gazette Extraordinary, Federal Republic of Nigeria, May 1999, A900.

The right of freedom of expression is also derogated under the provisions of Section 45. It states that nothing “shall invalidate any law that is reasonably justifiable in a democratic society - (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons."

Similarly, the provision for freedom of the press contained in Article 21(1a) of the Constitution of Ghana seems to be taken away in Article 21(1f) that provides that all persons shall have the right to “information, subject to such qualifications and laws as are necessary in a democratic society” (Flanz, 1998, 52).

Derogable and clawback clauses in African constitutions led Hansungule (1995) to conclude that majority of African nations have adopted the practice by which the right of freedom of expression is enshrined in the Bill of Rights, while at the same time allowing, in the same clause, for the lessening of that right by the state. Hansungule (1995) further notes that even "in those constitutional frameworks in which it may not be derogable, it is still, nonetheless, subject to clawback measures which, if put in practice, could end up tearing up the protection and, therefore, rendering the right vulnerable” (14). Ogbondah (1997; 2002) and Tettey (2001) have also articulated this argument.

In addition, incidents of harassment of journalists and the use of arbitrary as well as extra-legal actions by security agents seem to persist. For example, on January 17, 2000, Kabral Blay Amihere, president of the West African Journalists Association and the editor of The Independent, a weekly newspaper, was arrested by armed military personnel and imprisoned at a military camp in Accra, Ghana. In October 1999, five reporters of The Standard along with some journalists of Joy FM station were arrested after airing a video that tried to suggest that the Ghanaian government is corrupt.

On June 26, 2001, state security officers ordered the editorial staff members of Joy FM station to report to the police station for questioning or risk the chance to be arrested. Other journalists, including Kweku Baako, editor-in-chief of Crusading Guide continue to receive occasional threats for their criticisms of the financial linkages between some officials of the past government and Swiss as well as other European bank accounts.

In Nigeria, a Daily Independent photo-journalist, Akintunde Akinleye, was assaulted by officers of the state police while covering a public event that featured the vice president, Atiku Mohammed on August 30, 2003. A statement issued by a spokesman of the National Human Rights Commission, Lambert Opara, following the incident puts the problem of the use of arbitrary actions by security agents in perspective. According to Opara, the actions of policemen run counter to democratic values . . . indeed, "The physical torture of journalists by the police in . . . recent times is highly barbaric, dehumanising and condemnable . . . antithetical to democratic principles of freedom of the press and freedom of movement” (The Guardian, September 2, 2003). The vice president made a financial settlement with the photojournalist when members of the public launched an intense criticism of the assault on the photojournalist.

On April 5, 2000, Nigerian government security agents invaded the office of ThisDay for publishing information that exposed the involvement of some government officials in questionable business transactions (Vanguard, April 6, 2000). Earlier in the same year, government security officers seized copies of the Abuja Mirror without explaining their action (Ibid). In March 2002, government security officers at the Lagos airport arrested a prominent evangelist, Joshua Bakare, a well known critic of the Obasanjo administration. In October 2002, security agents of the Nigerian Customs Service confiscated copies Hope Betrayed, a book that details ethnic violence in Nigeria. The state has also made attempts to crackdown on political criticism. For example, in December 2002, officers of the State Security Services (SSS) at the Lagos airport, arrested and briefly detained two political critics -- Tajudeen Abduraman, Iheoma Obibi—for undisclosed offenses.

In Nigeria, extra-judicial and arbitrary measures have been utilized to suppress citizens’ rights of petition and demonstration. In 1999, for instance, armed naval and army troops engaged peasant demonstrators in Odi, Bayelsa State, in a pitched battle for several weeks largely resulting from the citizens exercising of their rights to protest perceived unjust government policies. Dozens of unarmed civilians were killed as the soldiers mowed down the entire town (Tell, January 17, 2000, 23). Similar use of force was used by the state police against civilian demonstrators in Choba and Igwuruta in Rivers State as well as in Zaki Biam in Benue State. This paper argues that consistent with freedom of expression and assembly, public demonstration is a form of symbolic expression, and should be protected as a fundamental right of free speech in Nigeria.

It is due to these types of incidents against the press that the Paris-based Reporters without Borders (RSF) in its second World Press Freedom Ranking placed Nigeria as the number 103^rd out of 166 countries in press freedom (See The Guardian, October 27, 2003).

Discussion and Conclusion

In this essay I set out to make a critical analysis of recent legislative and constitutional reforms that facilitate freedom of expression and mass media development in Ghana and Nigeria. Thus far, I have established that both countries have introduced a number of constitutional reforms that are capable of creating an enabling environment for press freedom and mass media development. Also, both countries have enacted constitutional and legal policies that address civil liberties and other human rights in their respective countries.

Comparatively, I conclude that Ghana’s effort at ensuring press freedom and protection of fundamental human rights in their constitution is more substantive than Nigeria’s. For example, while the constitution of Ghana, like that of Nigeria, guarantees press freedom, the Ghanaian constitution goes further to outlaw press censorship. Beyond that, it emphatically states that government-owned media are obligated to provide fair opportunities to all political parties to present their views. In addition, the constitution of Ghana, unlike that of Nigeria, makes specific provisions guaranteeing editorial independence in the press. And unlike the Nigerian constitution, Ghana’s states that it is an offence for the state to control or interfere with editorial content as it is also an offence for journalists to be harassed. Further, while in 1992, the Constitution of Ghana outlawed military coup, ironically, the 1999 constitution of Nigeria -- a country that was ruled by the military for nearly three decades -- did not make such outright provision. It was only in November 2001 that the National Assembly passed an anti-coup law, following several appeals from the public for the enactment of the law (see e.g. Newswatch, April 3, 2000, 48).

In addition, the Ghanaian Constitution provides for the establishment of a human rights commission. Although such a commission exists in Nigeria, it is a child of a 1995 military decree and not the 1999 constitution. Even the human rights panel referred to as the Oputa Panel set up by the government in 1999 to investigate rights abuses between 1966 and 1999 did not have the force of law to summon witnesses and compel them to disclose what they knew about human rights abuses. Ghana’s human rights commission was established under the provisions of the constitution.

Furthermore, I argue that the use of extra-legal, extra-judicial and arbitrary actions against the press and other citizens, occasioning in the arrest and detention of journalists and confiscation as well as proscription of media houses has abated but not extinct in both countries. This is due to the introduction of new legal policies that have expanded the space for human rights and civil liberties.

Despite the enactment of these constitutional and legislative changes, it is evident that some problems persist, and therefore ought to be addressed within the context of the on-going democratization. For example, while the constitutions guarantee the right of freedom of the press, the right is made vulnerable by derogable provisions and clawback measures in the same constitutions. Similarly, certain anachronistic statutory provisions such as the Official Secrets Act and the National Archives Act are still enforced.

Recommendations

In order to facilitate the creation of the enabling environment for freedom of expression in Ghana and Nigeria, lawmakers should review the entire legal frameworks in both countries with the purpose of effecting the following constitutional and legislative changes.

1. Expunge Clawback Measures

There is a need for legislative review aimed to expunge derogable provisions and clawback measures in the sections of the constitutions that provide for the right of freedom of expression. This is not to suggest that the constitutions should guarantee absolute press freedom. This is because there is no such thing as absolute press freedom anywhere in the world, especially in times of national emergencies, a point that Hass (1994) and Siebert, Peterson and Schramm (1984) have also articulated. Even Anglo-American societies have on occasions imposed limitations on freedom of the pres (see Shaw and Brauer, 1969; Stevens, 1969 and Stebenne, 1991). Even Walter Cronkite, former CBS Television network news anchorperson, who is considered by many as the conscience of journalism in the United States, once told the Italian daily, Corriere della Sera, that press censorship during war is justifiable. Cronkite said: “A certain degree of military control is inevitable. Journalists should accept it and do their job . . . .The news must not be transmitted live; the military have the right to control copy and photographs.”⁹

Even though there is no press with absolute press freedom, any limitations on expression must be imposed by the courts, a point that has been well articulated by Schramm (1967). The derogable and clawback measures in the constitutions should therefore be expunged. Any limitations on press freedom should be intended to protect individuals' rights of reputation and privacy as well as vital national [security] interests. Those limitations must not be imposed by the arbitrariness of the executive, the police or any governmental agency.

2. Right of Editorial Independence

There should be constitutional amendment in Nigeria that would specifically address the protection of journalists, the right of editorial independence and freedom from arbitrary as well as extra-legal and extra-judicial actions by the state. Press freedom provisions in the 1999 Constitution of Nigeria were merely reproduced verbatim from section 38 of the 1989 Constitution. There are no changes strengthening the right of freedom of expression as can be seen in the Ghanaian Constitution. In Ghana for example, the Constitution states that “there shall be no censorship in Ghana,” Section 162(2) provides against governmental interference in editorial contents of the press and state control of the media as well as harassment of journalists. Additionally, Article 162(3) provides that, “there shall be no law requiring any person to obtain a license as a prerequisite to the establishment or operation of a newspaper, journal or other media for mass communication or information” (Flanz, 1998, 140). Sub-section 4 of Article 162 further provides that, “Editors of newspapers and other institutions of the mass media shall not be subject to control or interference by Government, nor shall they be penalized or harassed for their editorial opinions and views, or the content of their publications” (Ibid).

Section 167 of the Constitution, providing for the establishment of a National Mass Media Commission, even empowers the commission “to insulate the state-owned media from government control” (142). The amended Constitution of 1996 has a new provision that excludes political office holders from membership of the commission. It provides that, “A person who is a founding member of a political party, is a leader or a member of its executive or holds any office in a political party shall not be qualified to be a member of the commission” (Ibid, 241). Unarguably, the purpose of the amendment is to insure the de-politicization of the commission’s functions.

These types of constitutional protections for journalists and the media are not provided for in the 1999 Constitution of Nigeria or in its subsequent amendments. This paper recommends that Nigeria’s National Assembly should introduce constitutional amendments that would specifically provide that press censorship, governmental interference in editorial content as well as the use of harassment, intimidation, extra-legal and arbitrary actions against journalists are illegal. This type of constitutional amendment is very essential in view of the chilling effects of governmental arbitrary and extra-legal actions on the press during the recent past. The effects of those arbitrary and extra-legal actions on the Nigerian press have been documented by several scholars, including Aboaba (1979), Adeyemi, 1995), Agbese (1988), Dare (1972), Ekwelie (1979), Hunt and Seng (1987) and Jakande (1979). Others are Jose (1975), Ogbondah (1994; 1991; 1989; 1986), Olorunsola (1977), Oreh, (1976) and Utomi (1981).

It is in view of these documented accounts that the Nigerian National Assembly should undertake a thorough review of the country’s legal framework to insure that special protection is made for journalists and to ensure editorial independence.

3. Abrogation of Antiquated Laws

Similarly, enhancing the substance and spirit of democracy requires that the government abrogates all anachronistic press laws, especially the Official Secrets Act and the National Archives Act that in the past have jeopardized the role of journalists in both countries. Notably enough, on July 27, 2001, the Ghanaian Parliament repealed the laws on libel and sedition that were hitherto utilized to arrest and jail journalists. The abrogation of the law was in fulfillment of the promise that President John Kufuor made on January 7, 2000 when he was sworn-in as Ghana’s new leader. But in Nigeria, the charge of sedition is still utilized by the police to harass journalists and political critics even though the Federal Court of Appeal declared in Arthur Nwankwo v. Governor of Anambra in 1983 that sedition is unconstitutional, over-zealous police officers still bring the charge of sedition against Nigerians periodically.¹⁰

Furthermore, all previous military decrees that were not repealed prior to the commencement of the current democratization should be abrogated. Those previous decrees include the newspaper registration Decree 43 of 1993¹¹(in Nigeria). Prior to the handover of power to democratically elected government in Ghana, the PNDC abrogated several obnoxious military decrees that previously denied the citizens the right of habeas corpus, freedom of movement, freedom of the press etc. This was not done by the military regime that handed over power to elected governors in 1999 in Nigeria. And although the new Nigerian constitution has superceded previous military decrees, the National Assembly should still introduce constitutional amendments that would formally abrogate those press decrees since they were never repealed prior to the handover of power to civil rule in 1999.

4. Freedom of Information Act

The Official Secrets Act which is still found in the statute books should be repealed and replaced with an [Electronic] Freedom of Information Act (FOIA) that would guarantee journalists and members of the public access to government information and computerized records and documents. Interestingly enough, a Freedom of Information bill has been introduced in the National Assembly in Nigeria. But the bill has undergone only two readings since 2000 when it was introduced. Nigerian legislators should as a matter of urgency pass the bill into law. Although the Ghanaian constitution guarantees the right of access to government-held information, the FOIA should be introduced as a way to more affirmatively mandate the disclosure of government-held information.

5. Right of Access to Public Media

It is equally my contention that the enactment of constitutional amendments that would guarantee citizens' right of access to public media and other government-owned communication outlets are necessary complements to the foregoing recommendations. A law that would guarantee all political parties equal or equitable access to government-owned media and telecommunication resources should be enacted. In Ghana, the right of access to government media is provided for in Section 163 of the constitution. That section describes the responsibility of state-owned media: "All state-owned media shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions." But the details of how political parties and associations can exercise this right should be spelled out through a comprehensive legal policy that addresses the issue of “equal access” to public-owned media.

I therefore recommend that an Independent Public Media Commission should be established to allocate airtime to all political parties and associations especially during elections. The commission should be charged with the duty of monitoring the entire spectrum of broadcasting during elections to ensure that all political parties receive equal access to government owned broadcast stations and other media houses.

6. Human Rights Commission

The National Human Rights Commission (NHRC) that exists in Nigeria today was established by a military fiat, Decree No. 22 of 1995 during the dictatorship of late General Sani Abacha. But nowhere in the entire constitution or Section 153 that provides for the establishment of certain executive federal bodies is a Human Rights Commission mentioned. The National Assembly should formally introduce a constitutional amendment that will set up the commission under the provisions of the new constitution. Such amendment would shield the NHRC from its critics as a creation of an illegal military decree. In this respect, Ghana’s Human Rights Commission established under the provisions of the country’s new Constitution is laudable.

7. Mass Media Registration and Licensing

Ultimately, Members of the National Assembly in Nigeria should introduce a constitutional amendment that would specifically outlaw media registration and licensing as Ghana has done. The Newspapers Decree 43 of 1993 that prescribed new registration guidelines for newspapers in Nigeria was never enforced -- just as it was not repealed by the military prior to May 29, 1999. And although newspapers are now being established without being registered or licensed, the National Assembly should formally introduce an amendment to the constitution that would specifically provide that it is illegal for anyone to require mass media registration and or licensing. Collectively, the foregoing recommendations will ensure that the march toward democratic practice and consolidation in both Ghana and Nigeria will be irreversible.

Notes

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Citation Format:

Chris Ogbondah. “Democratization And The Media In West Africa: An Analysis Of Recent Constitutional And Legislative Reforms For Press Freedom In Ghana and Nigeria,” West Africa Review: Issue 6, 2004.

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