By Muna Ndulo
(Professor of Law, Cornell University Law School and Director Institute for African Development, USA, Honorary Professor of Law University of Cape Town and Honorary Professor of Law, Free State University, South Africa)
Last week, armed Zambia Police accompanied by Zambia Revenue Officials raided the Post newspaper premises and attempted to shut down the paper on the pretext that they were executing a warrant of distress for nonpayment of taxes. There can be no argument about the need for citizens (corporations and human beings) to pay taxes. If indeed the Post owes taxes it must pay. But the fact that the Post owes taxes should not be an excuse to punish the paper for its editorial policies. The excessive militarization of the police operation that was conducted and the threat to the freedom of the press must be condemned as unjustified in a democratic state. The Post staff members were not armed and therefore posed no threat to those seeking to enforce a warrant of distress. The use of armed police would only have been justifiable if the Post staff had resisted the visit of tax officials. The growing militarization of the police in Zambia is most unfortunate. Increasingly, the distinction between the Zambian Police and military institutions is becoming blurred. The thuggish response of the police to community protests such as the University of Zambia, Mulungushi University, and Copper Belt University student protests shows the police as more an occupying army and less and less as a community-based police force whose primary duty is to protect citizens. It degrades the mentality of the police and subjects their targeted communities to rampant brutality and abuse. Police militarization also poses grave and direct dangers to basic political liberties, including rights of free speech, assembly, freedom of the press and good governance.
Good governance is the responsible exercise of political power and administrative authority in the management of a country’s affairs at all levels. It is, participatory, transparent, accountable, equitable, and fair. It promotes the rule of law and constitutionalism, and effective delivery of goods and services to the people. Participation involves members of the public in the decision-making as to, and implementation of, public projects or other government activity. It goes beyond mere consultation. It implies listening to the views of the citizenry and the existence of opportunities to contribute through gainful employment; opportunities to move in the mainstream of political, economic, and cultural processes without suffering marginalization and discrimination; freedom from poverty and deprivation; and freedom from vulnerability through a guaranteed system of socio safety nets. Transparency involves establishing appropriate lines or forms of accountability between the government and the public, which includes access to information and open decision-making. It requires that actual fairness of results and the process of representation, decision making in institutions, and enforcement be clearly specified, non-discriminatory, and internally consistent.
Good governance provides an enabling environment that under girds social and economic development. A critical element in the attainment of good governance and economic development is a free media that is able to play its role of informing the citizenry. Without a free media both good governance and economic development will falter. When a society is deprived of a free media it is not only deprived of its dignity it is also deprived of an opportunity for development and creating a better life for its people. A free media enables citizens to make responsible, informed choices rather than choices based on ignorance or misinformation. It enables citizens and policy makers to make decisions with all available facts rather than on outdated or inadequate information. By giving information on the activities of government and government officials it empowers and enables the citizens to enforce accountability on elected representatives and government officials. The free flow of accurate information has economic implications in that a competitive market economy requires that economic actors have access to relevant, timely, and reliable information.
The Media and Its Role as the Midwife and Guarantor of Democracy
The primary problem undermining the promotion of good governance in developing countries is weak institutional capacity and the lack of access to information to enable citizens to make informed judgments. A free media, by providing factual information and honest opinions, empowers citizens to advance their political rights and contributes to the strengthening of institutions so that they can contribute to sustaining good governance. Unfortunately, in many countries, the media is seen as an obstacle to government achieving whatever goals they have set out. According to the Committee to Protect Journalists (CPJ), between 1992-2015 1,150 journalists have been killed. Of that number 46% were covering political activities.
The media provides information that permits accountability to be achieved, laws to be carefully applied, markets to function, and people to be creative and innovative. It therefore has a key role to play in development both as educator and provider of key information for the process of democracy and development. The media has a crucial role in increasing popular awareness and understanding of the operations of government institutions. It can contribute to the development of a political culture supportive of democracy. The media plays a central role in exposing corruption and since corruption undermines the capacity and effectiveness of institutions to deliver development and services to the people, the exposure of corruption is a major contribution to institution building and the fight against poverty. In addition, a free press, by exposing wrongdoing, encourages accountability in the behavior of public officials and politicians and discourages corruption. Investors require credible information to make investments in countries. At election time, the media enables citizens to choose their representatives in an informed manner and encourages state officials to respond to the desires of the public.
Creating an Environment for the Media to play its Role
Only a free and vibrant press can provide citizens with a range of information and opinions including fiercely critical views on the actions of the government and other institutions in a country. As Justice Black of the United States Supreme Court outlining the underlying justification for the protection of free speech in the American constitution, observed in New York v. Times Company “the press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.” In the development battle, societies need media that go beyond political dogma, entertainment and reporting scandals. They need media that educates and informs society. They want media that helps to create a knowledgeable entrepreneurial and confident society and is able to address and achieve development goals. People want a media that educates them on health and environmental issues so that they can live safer and healthier lives and ensure a sustainable future for future generations.
The media face many constraints in their work including assaults, violence, intimidation, injury and at times death at the hands of governments that feel threatened by the very mandate of their work, revealing the truth. Governments pass laws and regulations and use a variety of other measures such as editorial pressure, and censorship that are designed to influence media content as well as restrict the media’s ability to function. Yet another threat to media role played by state owned media. State media is often used to counter the independent media regardless of the truth. State newspapers are notorious for practicing self-censorship in order not to run foul of the hand that feeds them.
Another insidious method used by governments to harass journalists and media houses is the use of the criminal justice system to intimidate them. The governments often consider it politically wise to get a court to share the responsibility of harassing and arresting people who those in power believe are embarrassing the government. This is done through threats of prosecution on the pain of imprisonment or threat of financial ruin through legal fees that those targeted are forced to incur defending themselves in courts of law. One commonly used approach is the liberal use of sedition and libel law to punish the dissemination of material that is embarrassing to the people in government. Another is the criminalization of criticism of the judicial system through the misuse of contempt proceedings. Reporters and others that criticize courts or comment on judicial proceedings are either charged with scandalizing the courts or interfering with the work of the courts. With respect to scandalizing the courts as the leading English Judge Lord Atkin observed a long time ago: “But where the authority and position of an individual judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticizing in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way.. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.” With respect to comments that allegedly interfere with the work of the court, in trials that are by judge alone, it has been observed that it is proper to assume that a judge as a professional lawyer will not be improperly influenced in any way. In both cases there are broader values that deserve protection, as the South African Judge, Justice Krigler observed in The State v. Russell Malambo (Constitutional Court of South Africa): “ free and frank debate about judicial proceedings serves more that one vital purpose. Self-evidently such informed and vocal public scrutiny provides impartiality, accessibility and effectiveness.” It constitutes a democratic check on the judiciary. And as another South African Judge, Abbie Sachs observed: “indeed, bruising criticism could in many circumstances lead to improvement in the administration of justice. Conversely, the chilling effect of fear of prosecution for criticizing the courts might be conducive to its deterioration.”
In order to ensure that the media plays its role, constitutions and state practice across the globe must guarantee the freedom and independence of electronic, print and other media. This is not asking much of governments and it is in fact asking them to live up to the various international conventions they have joined on the freedom of the press. Governments must not exercise control over persons engaged in broadcasting, the production or circulation or the dissemination of information by any medium. They must not penalize people for opinions or the content of any broadcast or print they make. Media, especially, broadcasting media must have the freedom of establishment subject only to licensing procedures that are necessary to control the airwaves. Freedom of expression and freedom of information can only be meaningful in a society where there is a free media. All state media must be free to determine independently editorial content of their broadcasts and must be afforded fair opportunity for the presentation of divergent views and dissenting opinions. Multi party competitive politics can only succeed where political parties have equal access to all media. A rights based approach to poverty alleviation can only prosper where the media is free to inform the citizenry about their rights and the way they are being governed. There must be movement towards the total elimination of impunity for violence against journalists. National laws should designate the assault of a journalist as an aggravated crime. Journalists are on the front lines of ensuring that citizens make informed choices that would guarantee that they live in dignity, peace, and prosperity. The press must be protected to carry on that work.
 Ambard v. Attorney-General of Trinidad and Tobago (1936) 1 All ER 704