Mohamed Kunowah Kiellow
The Sierra Leone Telegraph: 12 July 2014
In a poem ‘The Misfortune Teller – I have a dream that 2014 will be…’ which I wrote at the beginning of this year, I predicted that 2014 will witness the clipping of the wings of freedoms that are important for the proper functioning of democracy in Sierra Leone.
Also, “I dreamt that 2014 will see more suppression of our freedom of speech.”
Indeed, towards halfway through the year, we have witnessed de facto and de jure crackdown on many of our fundamental rights and freedoms in Sierra Leone.
The corrupt government of Ernest Koroma has put in place mechanisms and dubious practices to restrict our rights and freedoms, which has made it very impossible for us to live humanely and in dignity.
A stark example of such crackdown on our fundamental rights and freedom is the one attacking our right to freedom of expression, which last week’s banning of David Tam Baryoh’s radio monologue programme by the government, brings sharply into focus.
This freedom of expression is provided for in section 25 of the 1991 Constitution of Sierra Leone. It provides that:
“Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purpose of this section the said freedom includes the freedom to hold opinions and to receive and impart ideas and information without interference, freedom from interference with his correspondence, freedom to own, establish and operate any medium for the dissemination of information, ideas and opinions, and academic freedom in institutions of learning.”
The actions being undertaken by our president (Photo) and his team to deprive the media of their right to free speech, are against the rule of law and the democratic principles that are enshrined in the country’s constitution.
The people of Sierra Leone have seen the Koroma government clipping the wings of those journalists who dare to expose their dubious acts.
Many a Journalists have been put behind bars for exposing corrupt practices of the EKoroma led government.
A few days ago, the popular radio Monologue programme was banned for sixty days, for airing “unsubstantiated things about the military and the defence minister, bordering on “the security of the state”.
What are these unsubstantiated things? Did the Independent Media Commission (IMC) independently take that decision?
Or was there a direction from the supernatural judge called “orders from above?”
What is the legality and constitutionality of the action by the IMC?
According to Politico, the letter which was sent to the people concerned with this programme did ‘not explain exactly what the programme did do wrong.’
Without explaining in detail what the ‘things’ are that were unsubstantiated, the IMC took upon itself to ban the programme. This is an arbitrariness of a decision taken by an independent institution under duress.
From the letter sent to the people concerned with the programme, I could gather that the IMC did not act independently.
Section 3 of the Independent Media Act states that; ‘except as otherwise provided in this act or by any other law not inconsistent with the constitution, the Commission shall not be subject to the direction or control of any person or authority in the performance of its functions.’
The letter written to the people concerned with the programme further stated; “I am further directed to convey to you the cabinet conclusion at the meeting on 21st May 2014 that ‘the Monologue Programme on Citizen Radio be issued a sixty-day suspension order’ as from 12 O’clock today.” (Photo: Information minister Kanu).
By virtue of section three of the Act, the Commission is only subject to direction and control of any person or authority in the performance of its functions, if there is a provision provided in this Act or any other law not inconsistent with the constitution.
In the Independent Media Act, there is no substantive provision that gives the government the right to direct or control the IMC.
However, according to section 25(2) of the 1991 constitution; ‘there is nothing contained in or done under the authority of any law shall be held to be inconsistent with or in the contravention of this section to the extent that the law in question makes provision which is reasonably required in the interests of defence, public safety, public order, public morality or public health.’
To my mind, this is not a substantiated reason for banning a radio programme that is in the interest of the public.
The letter did not mention what ‘security of the state’ norms had been breached.
Inasmuch as there is no objective motivation for banning the program, the decision of the IMC is arbitrary and unconstitutional.
On what legal grounds then did IMC base its decision to ban the popular Monologue programme?
The IMC says that it has based its decision to suspend the programme on Section 21(1) of the Independent Media Act.
This Section stipulates that; ‘the Commission may, where it is satisfied that a radio, television and broadcasting institution, direct to Home DHT/ DSTV satellites services provider or public relation/advertising institution has not complied with any of the conditions of a license granted under this act, shall either cancel or suspend that license.’
It follows from the above that section 21(1) of the IMA is only applicable to radio, television and other electronic broadcasting institutions.
I submit that IMA acted ultra vires by applying this section of the IMA to the Monologue radio programme to effect the ban.
Section 21(1) explicitly states; that a license will be suspended or cancelled, where the Commission is satisfied that a broadcasting institution has not complied with the conditions in the license.
Although the IMC hasn’t told us what conditions were enshrined in the license of Citizen Radio, the fact still remains that IMC has practised detournement de pouvoir; it hijacked a power that was not accorded to it by the Independent Media Act.
Moreover, this act of the IMC is against the principle of legality.
Its ban is not based on any provisions of the laws of Sierra Leone. In short, the Commission has the discretionary power to cancel or suspend a LICENSE of a broadcasting institution, and not to ban a programme of such institutions.
The decision to ban the Monologue radio is therefore unconstitutional as it is in contravention of section 25 of the 1991 Constitution.
Arguably, however, many of the rights contained in Chapter Three of the Constitution are conditional, and may be interfered with in particular circumstances.
But , these permitted infringements must possess certain characteristics if they are to be accepted within the Constitution.
Section 25(2) states that: ‘Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in the contravention of this section to the extent that the law in question makes provision—
a. which is reasonably required:
i. in the interests of defence, public safety, public order, public morality or public health; or
ii. for the purpose of protecting the reputations, rights and freedoms of other persons, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating the telephony, telegraphy, telecommunications, posts, wireless broadcasting, television, public exhibitions or public entertainment; or
b. which imposes restrictions on public officers or members of a defence force; and except in so far as that provision or, as the case may be, the thing done under the authority thereof, is shown not to be reasonably justifiable in a democratic society.’
This section of the constitution provides for limitations to freedom of speech.
In the first place, the exercise of the limitation to this right should be prescribed by or in accordance with law (under the authority of any law).
This entails that there should be a law that provides for this limitation and imposes a sufficient element of control over the relevant decision-maker, so as to avoid the exercise of arbitrary action.
It has been argued that the IMC had no legal basis for the banning of the Monologue programme.
The second criterion that should be satisfied in order to justify an interference with this right is that the limitation should have a legitimate aim. These legitimate aims include, but not restricted to, moral grounds, the protection of the right of others and state security reasons.
This interference should be prescribed in accordance with the law and necessary in a democratic society to do so.
The IMC’s banning of the popular radio programme was, according to the Commissioner of IMC, precipitated by the broadcasting of unsubstantiated things about the military and the defence minister Conteh (Photo), bordering on “the security of the state.”
As far as I am concerned, banning a popular radio programme for broadcasting unsubstantiated things about the military and the defence minister, bordering on the security of the state is no legitimate aim.
I submit that the phrase ‘bordering on the security of the state’ is vague and a recipe for arbitrariness.
The third criterion that has to be met to justify the exercise of the limitations to freedom of speech is that the interference should take place in a manner necessary in democratic society. There should be a strong objective justification for the law and its application.
For example, although it might be useful or convenient to have a law that prohibits the publication of material likely to cause offence or annoyance to the majority of society, it would not for that reason alone be “necessary” to have such a law.
The word “necessary” meant that there must be a “pressing social need” for the interference. The banning of a radio program based on an argument that the presenter broadcasted unsubstantiated things about the military and the defence minister bordering on the security of the state, is not a pressing social need for the interference.
On the contrary, the programme was necessary in that it educated the masses on the dubious behavior of a government that is no longer accountable to the people who elected it to govern them, according to democratic principles and the rule of law.
The banning of the popular Monologue programme was carried out by the IMC without any legal basis, given the fact that the wrong provision in the Independent Media Act was applied to justify its action.
This contravenes section 25 of our national constitution, which stipulates the conditions that has to be satisfied before limiting the enjoyment of the right to free speech.
The action of the IMC is therefore illegal and unconstitutional.