This is a paper by Edetaen Ojo, Executive Director, Media Rights Agenda At the Awareness Seminar on the Press Ombudsman

Organized by the Newspapers Proprietors’ Association of Nigeria (NPAN)  in association with the Nigeria Union of Journalists (NUJ),  the Nigerian Guild of Editors (NGE) and other stakeholders on Tuesday, November 17, 2009 at Imperial Hall, Ikeja, Lagos

Introduction

Let me start by thanking the Newspaper Proprietors Association of Nigeria (NPAN) and its principal partners in this project – the Nigerian Guild of Editors (NGE) and the Nigeria Union of Journalists (NUJ) – for inviting me to share my thoughts with you on how we can make this very laudable and timely initiative work.

I consider this a great honour and I thank them for the privilege of addressing you.  I know that there are a great variety of ideas in this hall about how we can achieve an effective and successful self-regulatory system in Nigeria.  I hope that my comments here will trigger a discussion that can lead to an agreed set of principles and commitments that we can take away from this seminar.

Background

I think we must acknowledge that over the last several years, there have been increasing criticisms of press behaviour, some of it legitimate, others orchestrated and designed to weaken the media institution by powerful interests that are uncomfortable with a vibrant press beaming its searchlight on their questionable activities.

In order to redress legitimate grievances which have the capacity to taint the entire industry and which can provide cover for the surreptitious and very current attempts to restrict media freedom, it is critically important that the media industry puts in place a framework for responding to the situation.

There can be no doubt in the mind of anyone here or, indeed, any enlightened person in this country that decades of attempts at statutory, government-backed or government-controlled regulation of the press have failed woefully.  It seems clear to me that continuing on that path will be a futile effort.

The NPAN has therefore taken the lead, backed by other partners, in trying something else, which is more in accord with regional and international best practice, standards and principles of media regulation.

For this proposition, permit me to very quickly refer to the Declaration of Principles on Freedom of Expression in Africa, adopted by the African Commission on Human and Peoples’ Rights (ACHPR) in October 2002 and subsequently endorsed by Heads of State and Governments of the African Union at their summit in Maputo, Mozambique, in July 2003.

Article IX(3) of this uniquely African instrument states very clearly that “Effective self-regulation is the best system for promoting high standards in the media.”

I should add that the essence of the Declaration was to clarify and elaborate on Article 9 of the African Charter on Human and Peoples’ Rights, to which Nigeria is a state party and which it has gone further to domesticate as part of its laws by virtue of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.1

By some coincidence, it was this same Honourable Justice Moronkeji Onalaja, who is now the Press Ombudsman, who ruled, quite courageously on May 5, 1993, that the African Charter, being an international law, is superior to Nigerian domestic laws2.  I was a witness to that ruling then as Assistant Judicial Editor of The Guardian newspaper

There can therefore be no basis for hesitation on our part to move forward with this initiative.  We have an obligation to make it work and the key question now is HOW?

Applicable Principles

There are some basic principles which characterize any truly self-regulatory media system.  One of the most important principles is that the Government can have no part in formulating the framework or sustaining the mechanism, including in drawing up the applicable ethical codes and standards. 

The rationale for this is obvious, but let me state it briefly.  Since the Government is often at the receiving end of critical reports in the media, there is no doubt that many governments will be determined to find ways of either controlling the media or hitting back at journalists or media establishments which have carried critical or unfavourable reports about them. 

A regulatory framework established, either wholly or in part, by the Government presents an opportunity for it to exercise such controls and puts journalists and media establishments, which are supposed to be holding the Government accountable to the people, at the mercy of the Government, and therefore, at risk.

I think it is very possible, as we have seen with the case of the Ombudsman, for professional bodies and associations within the media to organize themselves to draw up a framework for a self-regulatory system.  All that is required is for the bodies to organize themselves properly and to have a unity of purpose. 

Under our present democratic arrangement, we do not need the government’s permission or even cooperation to organize ourselves for this purpose.  We do not need the Government’s blessings for the outcome of any such independent arrangement to govern us or to be binding on us, if we are all committed to it.

The second principle follows naturally from the first, but is a little bit more complicated.  The principle is that such a self-regulatory mechanism, even if formulated by the professionals themselves, cannot be established by statute as this tends to bring the body under the control of the State once it is set up by law. 

There is a tendency for people to feel that unless such an institution or a system is established by Law, it cannot work.  In a situation like this, many people might feel that unless it is backed by Law, it cannot be effective.  The truth is, if it requires state power to enforce, then it cannot be a self-regulatory.

The critical question here is:  Do we really need the involvement of the Government to operate an effective system of self-regulation?  If all or most media owners and managers as well as professional bodies within the media were to agree today to support and commit themselves to a credible framework for self-regulation in the form in which it has now been established, is there any reason why it will not work without legal backing for it?  Can the Government insist that it will not recognize such an arrangement if it is not backed by Law and consequently proceed to impose its own framework on us? 

I think such an arrangement is entirely workable, as experiences from elsewhere have shown.  There are many examples of media self-regulatory systems around the world and many of them are working quite well. Everything would depend on the commitment within the industry to make it work.

We can perhaps draw inspiration from Britain where the media faced a similar situation in the 1980s, when following unethical conduct by some newspapers, Members of Parliament and other politically influential citizens resolved that the protection of the public required the enactment of law on privacy and a right of reply as well as a statutory press council empowered to enforce legal sanctions against any offending newspaper. 

Concerns about this possibility resulted in a declaration in 1989 by the editors of all national newspapers, in a country with a highly competitive media industry, that: “We, having given due consideration to criticism of the Press by Parliament and the public, accept the need to improve methods of self-regulation.  Accordingly, we declare today our unanimous commitment to a common Code of Practice to safeguard the independence of the Press from threats of official control”.3 

Shortly afterwards, the Press Complaints Commission was set up in Britain and all publishers and editors made a public commitment to observe the Code of Practice.

While there is clearly a desire on the part of most governments to exercise and retain control over the media, governments often seek to justify their efforts at establishing press councils to regulate the media by arguing that the media is irresponsible and that there are no effective checks on its excesses. 

If the media is able to operate a self-regulatory mechanism that is credible and effective, such arguments will no longer be tenable and I do not believe that under such circumstances, the Government will insist on imposing its own regulatory framework.  In any event, a united media industry will be able to resist such a move.

The need for a self-regulatory system is dictated by the imperative of freedom of expression and a free press in a democratic society.  Despite the absence in Britain of any constitution guaranteeing freedom of expression and press freedom, the British Government finally accepted the idea of a media free from government regulation because of its recognition that freedom of expression constitutes one of the essential foundations of any democratic society. 

In Nigeria where we have a constitutional guarantee of freedom of expression as well as a constitutional provision which imposes duties on the press in a democracy, the idea of promoting the freedom and independence of the media in the exercise of that right and performance of the duties should be easier to sell.

The challenge here for us is to mobilize the entire industry to agree on and make a commitment to a common code of conduct and a self-regulatory mechanism which will eliminate the necessity of official regulation.  It is a challenge which the leadership of the various professional bodies and associations within the media, particularly the NPAN, the NGE and the NUJ, assisted by individual journalists and media groups, must take up if we want to make this a reality.

A third principle is that the funding of the mechanism should be done independently of the Government or at least that the Government should not provide such a substantial portion of its funding that will enable it to control the system indirectly by manipulating the funding.  The rationale for this principle is encapsulated in the saying that: He who pays the piper dictates the tune.

This principle is perhaps the most difficult to satisfy in Nigeria.  The funding issue has sometimes been the reason why the media industry, both in Nigeria and elsewhere, have acquiesced to government-supported or controlled regulation of the media because many people feel that it is easier for the government to fund a regulatory agency or institution while it is not so easy for the media industry itself.

For any regulatory system to be independent and effective, it must be adequately funded.  There can be no debate about this.  Without adequate funding, the system cannot function. The solution in Britain was to raise a levy on the newspaper and periodical industries to finance the Press Complaints Commission to enable the industry to support a fully self-regulatory system.  All publishers and editors made a public commitment to maintain secure funding for the Commission.

However, the media industry in Britain is a buoyant one.  The same cannot be said of the industry in Nigeria.  Many media establishments in Nigeria are barely able to survive.  Only some of them are able to pay staff salaries regularly, while the facilities and infrastructure of many media organizations remain underdeveloped for lack of resources. 

It might therefore not be completely realistic to expect that media establishments in Nigeria will willingly undertake to wholly fund a regulatory mechanism and even if they gave such an undertaking, that they will be able to abide by it in the face of their own financial difficulties.

Here again, we need to be resourceful and examine a combination of different funding options. 

Without doubt, media house should be expected to make periodic, preferably annual, contributions to support the office and work of the Ombudsman.  The amount of contributions from different media houses can be determined based on their circulation or the size of their businesses or other considerations as may be agreed. 

In addition to levying newspapers and magazines to support the work of the Ombudsman, another option is that a portion of the check-off dues which journalists are supposed to pay should also go to supporting the work of the Ombudsman. 

Given the number of journalists in Nigeria, the amount which can be raised from this option may be quite significant.  But this might even necessitate some slight increase in the percentage of their salaries which journalists pay as check-off dues.  I think it will be a price worth paying to secure one’s independence and to enhance credibility with the public. 

A third option would be to actively raise funds to support the office and work of the Ombudsman from private donors and foundations.  Non-governmental organizations may also be called upon to support this endeavour. 

The possibility that corporate bodies might themselves be lodging complaints before the Ombudsman against journalists and media establishments does not make them attractive options to approach for the funding.  But we may wish to discuss this further and explore ways in which any possible conflict of interest can be mitigated.

I am sure that there are others here who will also have some ideas on possible additional sources of funding and revenue for supporting the work of the Ombudsman.  Let us put all the ideas on the table and explore them.

But whatever funding mechanisms are adopted, it is important that the process be clear and transparent so that the issue does not become mired in controversy, which can undermine the credibility of the Office.  Administrative staff in the Office of the Ombudsman should keep proper records of contributions and donations received and the Ombudsman, who is the head of the office, should be insulated from these financial matters.

Elements of Effective Self-Regulation

There are some other basic elements by which we can assess the possibility for success and effectiveness of a self-regulatory mechanism.  These elements include:

1.How adequately the underlying ethical and professional guidelines which the Ombudsman is applying balance the right and freedoms of the press to perform their functions against the interests of other sections of the society, including members of the public and the government.

This necessarily implies that there should be established a code of professional conduct to guide the work of the Ombudsman so that the standards by which the practitioners are judged are clear and generally agreed upon.  This will eliminate arbitrariness from the process.  It is therefore of absolute importance that the Ombudsman is given a clear set of rules to interpret and enforce.

The Code should encapsulate, at a minimum the principles of accuracy, fairness, balance and impartiality, independence and accountability.

We presently have in existence the Code of Ethics for Nigerian Journalists, adopted by the Nigerian Press Organisation (made up of the NUJ, the NGE and the NPAN), in collaboration with the Nigerian Press Council in Ilorin in March 1998.  Should this be the applicable standard?  If so, the Ombudsman needs to know that these are the standards that bind the practitioners and the standards that he is enforcing.

In interpreting and enforcing the Code, since the Ombudsman is not a media professional and has no background in the media, he should be assisted in his work by experienced media professionals who can give advice on the meaning, scope and application of the provisions of the rules to help him reach decisions which effectively balance professional requirements as well as the rights and freedoms of media practitioners, against the interests and rights of other sectors of the society.

2. The consistency and forcefulness with which the Ombudsman applies the ethical and professional guidelines.

While the specifics of each complaint may differ, it is important that the decisions of the Ombudsman in different cases are consistent and authoritative, with a common logic and uniform application or interpretation of the standards.  This will help to clarify specific provisions in the Code of Ethics and establish a body of “jurisprudence” in this area of media practice. 

Inconsistencies and contradictions in the decisions of the Ombudsman can severely undermine the confidence of both members of the public and members of the media community in the mechanism.

However, I believe that with an Ombudsman of the calibre of Honourable Justice Onalaja, there can be no anxiety whatsoever in this aspect.

3.The readiness with which the industry – newspapers and magazines (and, if applicable, the broadcast media) comply with the decisions of the Ombudsman. 

For the Office of the Ombudsman to be effective and credible, media owners and managers must be fully committed to it and must undertake not only to abide by its decisions, but also to ensure that journalists working in their establishments do so and respect the Code of Ethics.  Once media owners and managers demonstrate unequivocal commitment to the system, journalists in the employment will automatically fall in line.

Public confidence in the Ombudsman mechanism is an absolute imperative for its success.  Such public confidence would be seriously undermined if media establishments refuse to or delay unnecessarily in complying with the decisions of the Ombudsman. 

This is because public confidence will flow both from the media’s compliance with his decision as well as from the public’s view of the fairness of those decisions.

The professional associations and bodies which are behind this initiative, particularly the NPAN, must do everything possible to ensure that their members demonstrate total support and commitment to it.  There can be no room for a half-hearted belief in this.

There are a number of other issues that will be important for the success of this mechanism.  I will discuss some of these briefly:

Those who choose to use the Ombudsman mechanism must commit themselves fully to it.  They should avoid taking issues which they have already submitted to the Ombudsman to the courts as this would clearly undermine the process.  If complainants who submit their complaints to the Ombudsman thereafter take those same complaints to the law courts, then the media would not want to subject themselves to double jeopardy.  They may also feel that their conciliatory efforts aimed at amicable resolution of difference might be used against them in court and this could inhibit the spirit of conciliation. Such a situation would result in the system progressively breaking down.

I appreciate that since the Ombudsman mechanism is voluntary and not statutory, it will be difficult to preclude complainants from subsequently exercising their legal rights where such rights exist or accrue.  That is why members of the public who choose to use this mechanism must demonstrate their complete belief in the system and show good faith.

I think it is appropriate here to remind ourselves, as members of the public, of the intrinsic value of a self-regulatory mechanism, such as this, especially in a country like Nigeria where the alternative, which is the judicial system, is time-consuming, can be quite expensive and its outcome very uncertain.

If the real intention of a complainant is to vindicate his or her reputation or correct inaccuracies in a media report, the Ombudsman mechanism offers a quick and completely inexpensive process for achieving these objectives.

Other Measures

It is quite possible that if the system works perfectly and becomes a popular option with the public, the Office of the Ombudsman might become overwhelmed with the volume of complaints being brought before it.  Other measures may therefore need to be taken to avoid this possibility.

One of such measures is to for individual media houses to make clear to the journalists working in their establishments what the standards are and to rigorously enforce those standards.  This will send a clear message to journalists that brazen acts of professional misconduct will not be tolerated and I believe this will lessen the occurrence of such cases.

Media establishments can do this by adopting a practice of including the Code of Ethics in the terms and conditions of employment of reporters and editors.  Such reporters and editors, in accepting the terms and conditions of the employment then undertake to abide by the Code of Ethics.  Where a breach of the Code of Ethics and therefore the terms of employment of the journalist or editor is established, it would attract disciplinary measures from the employer. 

Such a practice would also serve to create greater awareness among practitioners about the Code of Ethics and the standards to which they will be held.  My interaction with professional colleagues over the past several years reveals that a shockingly large number of journalists have never seen, much less read, the Code of Ethics for Nigerian Journalists.  I often wonder how they can be expected to comply with the standards if they do not even know what those standards are.

This problem needs to be seriously addressed because breaches of professional ethics and standards are also sometimes the result of ignorance among journalists rather than a deliberate desire to cause mischief.  We therefore need to find other ways of raising awareness within the media community about the applicable code of ethics.  Media managers should ensure that these professional standards are constantly referenced, regularly discussed and possibly taught in-house by more experienced reporters and editors.

It is also important that members of the public know and understand the standards that bind media professionals so that they can more effectively attempt to hold them to those standards.  The code of ethics should therefore be publicized through articles and commentaries and should be published in newspapers and magazines as well as on their websites.

The practice proposed above of inserting the code of ethics in the employment contracts of reporters and editors would also make it far easier and possibly more expedient for media owners and managers to exercise such disciplinary control over individual reporters and editors in their employment who are proven to have violated the Code of Ethics than the Ombudsman may be able to do.

Conclusion

The ideas contained in this paper are my thoughts on how we can make self-regulation in the media sector in Nigeria work.  They identify some of the critical principles we need to be aware of and the challenges we need to address. 

They are in no way prescriptive, although they draw from experiences that have worked elsewhere and take cognizance of international human rights standards and principles.

I thank you for your attention.