Being the paper presented by Femi Falana (SAN) at the First Annual Public Lecture Series of the Mass Communication Department, Lagos State Polytechnic, Ikorodu.
A media report may be defineas a means of communication reaching a large number of people through means such as television, newspapers and radio. Media reporting would therefore mean, all forms of communication including the social media to connect with, and keep the general public informed. Apart from reports and adverts in the newspapers, television and radio the social media has been inundated with information and misinformation on the 2015 General Election.
According to the timetable published by the Independent National Electoral Commission (INEC) last year, the 2015 General Elections are scheduled to hold next month. In order to conduct fair and free elections the Constitution and the Electoral Act have charged the mass media with the responsibility of mobilising and sensitising the electorate. In ensuring that the onerous responsibility is discharged by the media without running foul of the law the Mass communication department of the Lagos State Polytechnic has decided to examine “The Legal and Ethical Issues in Media Reporting in Nigeria vis-a-vis the 2015 General Election. “
Possible postponement of general election
In recent time, there have been calls for the setting up of a transition government or interim national government under the pretext that a war on terror is being prosecuted by the federal government. Since elections are conducted in Iraq, Afghanistan, Libya and other war zones the suggestion that elections be cancelled on account of the war against insurgency is of no moment. More so, that the people of the north east zone including over a million internally displaced persons have asked the INEC to respect their legitimate right to participate in the election.
Sometime last year, the Senate President, Senator David Mark declared that “there is no question of election. It is not even on the table now. We are in a state of war.” At a public lecture in London last week, the National Security Adviser, Colonel Sambo Dasuki (rtd) asked for the postponement of the election by at least three months to allow time for the distribution of the permanent voters’ cards by the INEC. Since both General Mark and Col Dasuki were part of the Ibrahim Babangida junta which annulled the results of the June 12, 1993 Presidential election their calls for the postponement of the election should be taken seriously by Nigerians.
In dismissing the calls for the cancellation or postponement of the election the INEC has continued to assure the nation that every voter would be furnished with a PVC ahead of the election. However, amidst rising fears that the election dates might be shifted the United States’ Government has read the Riot Act to the political class in Nigeria. While meeting President Goodluck Jonathan and his main challenger, General Mohammadu Buhari (rtd) in Lagos on Sunday the U.S Secretary of State, Mr. John Kerry insisted that the Obama Administration would not accept a postponement of the election. He also announced a visa ban on members of the political class who might be involved in electoral violence.
Media Law, Ethics and
political reporting
Media ethics is the code of conduct for protecting media professionals and for regulating the profession. The ethics of the media profession have been drawn up by the various bodies in the media, including the Nigerian Union of Journalists, Guild of Editors and the Nigerian Proprietors Association of Nigeria. The media council is charged with the duty of maintaining standards in the profession. No doubt, there are differences in the various codes. But they share common elements such as objectivity, impartiality, accuracy and truthfulness.
These principles are however shaped by the interests of publisher or the class interests of media organisations. While the public owned media is biased in favour of the government the private media protects the interests of the proprietors, most of whom are politicians with vested interests. Hence media reporting on the 2015 general election has been influenced by the political interests of the proprietors which are for the sustenance of the status quo. The social media has however successfully challenged the control and manipulation of information by the bourgeois media.
Duty of the media to
promote public
accountability
The Constitution has imposed a duty on the press, radio, television and other agencies of the mass media “to uphold the fundamental objectives contained in Chapter of the Constitution and uphold the responsibility and accountability of the Government to the people.” (section 22) In discharging the constitutional duty the press is required to place public interests over and above commercial considerations. To facilitate access to information from public institutions the Freedom of Information Act has imposed a duty on all public officers to make information available upon demand. Instead of publishing stories that are based on rumours and speculations the media should take advantage of the law by demanding information from public institutions including political parties and candidates.
On account of the significance of the fundamental objectives section 224 of the Constitution states that the programme as well as the aims and objectives of a political party shall conform with the provisions of Chapter II of the Constitution. In reporting the electioneering campaigns the media should extract undertaking from political parties to implement the fundamental objectives. In Amaechi v. INEC (2007) 1 MSCJ 1 at 207 the Supreme Court held that elections are won by political parties and not by candidates.
At this juncture it is pertinent to examine the relevant provisions of the fundamental objectives. Since the republic is said to be a State based on the principles of democracy and social justice the security and welfare of the people shall be the primary purpose of government. (Section 14(2)(b) of the Constitution). To promote the welfare of the people the State is obligated to secure full residence rights for every citizen in all parts of the country, ensure the control of the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen and the distribution of the material resources of the nation to serve the common good.
In furtherance of the social order the State shall direct its policy towards ensuring employment opportunities for all citizens, adequate medical and health facilities for all persons, equal pay for equal work, protection of children, young persons and the aged, public assistance in deserving cases, provisions of adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and provisions, sick benefits and welfare of the disabled. To eradicate illiteracy and enhance national development there shall be free education at all levels including free adult literacy programme.
It is indisputable that the aforesaid objectives cannot be achieved by political parties whose manifestoes and programmes are based on market fundamentalism. On that ground, every political party or candidate should be made to disclose to the electorate, through the media, how they intend to achieve the fundamental objectives. To promote public accountability the media should ensure that the assets and liabilities of all elected leaders are declared and made available to the electorate. All those who are contesting elections to the National Assembly should disclose the total emolument of federal legislators since they are said to be the highest paid in the world.
Since the commencement of campaigns for the 2015 general election, politicians have been seeking the support of the electorate in the media, by way of paid adverts or sponsored programmes. But in selling their programmes some of the political parties have engaged in mudslinging and libellous publications. Politicians who are campaigning for votes should be made to proffer solutions to the crisis of underdevelopment plaguing the country. The media should not allow reactionary politicians to divert attention from the hydra headed problems of comatose economy, unemployment, insecurity, infrastructural decay, looting of the treasury, armed robbery, kidnapping, terrorism etc.
Those who are convinced that the nomination form submitted by any candidate sponsored by a political party should take advantage of section 34 of the Electoral Act by filing a suit in court for the disqualification of the candidate. Since section 318 of the Constitution prescribes education up to junior secondary level as the minimum qualification for contesting elections in Nigeria the whole debate over General Mohammadu Buhari’s school certificate is totally diversionary. Unfortunately, the army allowed itself to be discredited on the basis of its partisan role in the whole saga. A few weeks ago, Brigadier-General Olatunji Laleye had said that the army was in possession of General Buhari’s academic documents and that he could apply if he needed them. The same officer later turned round to claim that the documents could not be found in the retired General’s personal file!
It is jejune to suggest that an army officer who attended post secondary school military institutions in Nigeria, United Kingdom, India and the United States is constitutionally disabled from contesting elections in Nigeria. It is particularly embarrassing that some senior lawyers who joined the fray pretended not to know that the minimum academic prerequisite for contesting any of the national elections includes the possession of a primary six certificate with 10 years’ working experience or the competence to speak English to the satisfaction of the INEC.
Reclaiming the welfare State
To reclaim the welfare state from its obstinate opponents in government the Nigerian people have to be mobilized to ensure compliance with the various welfare laws. The press is obligated to promote the campaign for the full justiciability of socio-economic rights such as rights to education, health, employment, housing etc. These rights are enshrined in chapter 2 of the Constitution. Although the government is required to defend the security and promote the welfare of the people it has always complained of lack of resources. However, the resources are available but the country is run by a ruling class that is not prepared to wage a battle for the democratic control of the economy. The crisis is compounded by the fact that the country is currently administered by an army of neo-liberal ideologues who are leading the two dominant political parties.
At a recent public lecture at the Obafemi Awolowo University, Ile Ife, Osun State, the Lagos State Governor, Mr. Babatunde Raji Fashola SAN was reported to have said that the government could not guarantee access to education for Nigerians. According to him, ”the quality of education that we can impart if children pay N50,000 to get professional training and their colleagues in private schools pay N200,000 upwards abroad to get the same training. Will they be of the same quality in a capitalist world, where quality is often determined by price? “. The governor said that the free education policy which Chief Obafemi Awolowo implemented in western Nigeria is no longer feasible because Nigeria has recorded an average literacy level of about 55 percent! It is curious that a progressive governor is campaigning for lack of access to mass education because we have a “literacy rate of 55 percent” .
Since the governor is one of the leading ideologues of the APC the views attributed to him on access to education should not go unchallenged. With respect, the educational system in the capitalist world is organized in a manner that the children of the poor can access education at the expense of the State while the rich can are at liberty to educate their children and wards in expensive private schools. Through the universal health care insurance scheme funded by the State the poor can access health in the public hospitals while the rich can afford to go to well equipped private medical centres in any part of the world. It may interest Governor Fashola to know that the tiny island of Cuba which is far less endowed than Nigeria has attained 100 percent literacy rate and has the highest number of doctors per capital in the world.
Under Sections 17 and 18 of the Constitution the State is mandatorily required to provide free health and education including tertiary education based on the availability of resources. If the abundant natural resources of our country have been harnessed and distributed equitably as envisaged by section 16 of the Constitution the government would have guaranteed the security and welfare of all citizens. In any case, through popular struggles, the neo-colonial state has been compelled to enact laws to provide for the welfare of the Nigerian people. One of such legislations is the Universal, Free and Compulsory Basic Education Act, 2004 which has guaranteed free and compulsory education for every child from primary to junior secondary school.
Towards the funding of the UBE scheme, not less than 2% of the consolidated revenue fund of the federal government shall be contributed annually. In 2012, the UNICEF disclosed that there were 10.5 million Nigerian children who were out of primary school. Regrettably, the implementation of the UBE scheme has been frustrated by the majority of state governments. Right now, the sum of N56.9 billion which is the matching grant due to 31 states and the federal capital territory has not been accessed due to refusal to contribute counterpart funding. From the information at my disposal, only 5 states namely Gombe, Kano, Katsina, Sokoto and Taraba states have accessed their matching grants up to date!
Under the newly enacted National Health Act, at least 1% from the consolidated revenue fund of the federal government shall be contributed to the Health Provision Fund. Although the fund will not be adequate to provide basic health care services to every indigent citizen the contribution of state and local governments to the fund ought be made compulsory. At the federal level the National Health Insurance Act has established the National Health Insurance Scheme with the basic objective of protecting Nigerian families from financial hardship of huge medical bills. The scheme is funded by contributions from employers and employees based on income. For the formal sector the contributions are premiums which make up 15% of a member’s basic salary. The employer contributes 10% while the employee pays 5%. The scheme covers a member, the spouse and four children. Participants from the informal sector are required to make a monthly contribution. No state government has a similar scheme in place.
Political reporting and electoral offences
The fundamental right to freedom of expression including freedom to hold opinions and to receive and impart ideas and information without interference has been guaranteed by the Constitution. (Section 39 of the Constitution). Apart from professional ethics the law of defamation protects the reputation of individuals and corporate bodies including politicians and political parties. Since freedom of expression is not absolute any media house or reporter who engages in libellous publications during electioneering campaigns may be sued and if found liable, ordered by the courts to pay damages running to million of naira.
In addition to the penal codes the Electoral Act 2010 as amended has prohibited political campaigns which are based on hate or incitement. In order to ensure equal coverage of the activities of political parties and candidates the Act has criminalised certain publications with respect to political reporting. Sections 99-101 of the Electoral Act 2010 which deal with media reporting of political activities are briefly examined hereunder.
Campaign Period
By virtue of section 99 (1) of the Act the period of campaign in public by political parties shall not commence 90 days before polling day. Although the media cannot be prosecuted under the section it is morally wrong to collude with political parties to breach the provisions of the law. However, it is on record that several media houses published campaign advertorials from the ruling party and shadowy bodies like the Transformation Ambassadors of Nigeria (TAN).
The privatisation of state apparatus for political campaign
Section 100 (2) of the Electoral Act has banned the use of state apparatus including the media to the advantage or disadvantage of any political party or candidate at any election. In utter breach of the section some state governments have declared public holidays and force civil servants to attend rallies. Schools have been closed down for the compulsory attendance of teachers at political rallies. Many highly placed public officers have been using state owned television and radio channels to promote certain political parties and candidates while depriving members of the opposition parties airtime to reach the electorate. Official vehicles are used to ferry politicians and supporters to rallies.
Such abuse of power was taken to a ridiculous extent in Ekiti State when all civil servants were recently compelled to either attend a political rally of the ruling party or forfeit their salaries.[1] A permanent secretary who demurred and refused to attend the rally on solid legal ground has been compulsorily retired. Since it was a presidential campaign rally of the PDP, President Goodluck Jonathan should prevail on Governor Fayose to recall and reinstate the Permanent Secretary without any delay. As the stand of the patriotic public officer is in tandem with the provisions of the Constitution, the Electoral Act and the Civil Service Rules applicable in Ekiti State she should challenge her illegal removal in court if she is not reinstated by the Ekiti state government.
PROHIBITION OF ABUSIVE LANGUAGE
The presidential candidates and leaders of the 14 political parties who recently signed a peace accord in Abuja pledged to run issue-based campaign and refrain from campaigns “that will involve religious incitement, ethnic or tribal profiling, both by ourselves and by all agents acting in our names”. They equally undertook to refrain from making “any public statements, pronouncement, declarations, or speeches that have the capacity to incite any form of violence, before and after the elections.” The peace pact was unnecessary having regard to Section 95(2) of the Electoral Act which says:-
“Abusive, intemperate, slanderous or base language or insinuations or innuendoes designed or likely to provoke violent reaction or emotions shall not be employed or used in political campaigns.”
A number of the advertisements published by some political parties and politicians are reckless and inciting while others are scandalous in every material particular. Perhaps the most indecent and immoral advertorial is the death wish for General Mohammadu Buhari credited to Governor Fayose and published as a wrapper by the Punch newspaper. The advertiser predicted the death of the current presidential candidate of the APC by quoting a biblical verse to support his wishful thinking. Apart from violating the law the advert offended the moral sensibility of Nigerians. Surprisingly, neither Governor Fayose nor the newspaper which published the preposterous advertorial has deemed it fit to apologize to Nigerians.
It is germane to caution the politicians who are inciting ex-militants and ethnic warlords to cause mayhem if President Jonathan is not re-elected in the February 14 presidential election. Should there be a post election violence leading to the mindless killing of innocent people the masterminds of the breakdown of law and order may be accused of committing crimes against humanity. Beyond the cancellation of their visas by the United States and other western countries such politicians may be dragged before the International Criminal Court like President Uhuru Kenyatta of Kenya.
ALLOCATION OF MEDIA AIRTIME ON AN EQUAL BASIS
Section 100 (3), (4) and (5) of the Act provides that media time shall be allocated equally among the political parties or candidates at similar hours of the day. The law further states that at any public print media, equal coverage and conspicuity shall be allotted to all political parties during prime times at similar hours each day, subject to the payment of appropriate fees.
It is common knowledge that allotment of media airtime is quite expensive and is reserved for those that can pay the fees. In the circumstance only the political parties that are rich have been able to advertise in the media. Campaign rallies of the smaller political parties and their candidates are seldom covered. Although section 100 (6) of the Act stipulates a fine of N500,000 for contravening subsections (4) and (5) and N1,000,000 for subsequent convictions it is doubtful if a media organisation can be successfully prosecuted since the law has commercialized political advertisements and programmes.
No doubt, private media is not covered by the law but by virtue of Section 42 of the Constitution which has prohibited discrimination on political grounds it is illegal on the part of the ruling parties and government officials to use State apparatus to prosecute the political campaigns of some candidates to the disadvantage of others. Furthermore, Article 13(3) of the African Charter on Human and Peoples’ Rights provides that every individual shall have equal success to government resources and services.
PROHIBITION OF BROADCAST 24 HOURS PRECEEDING OR ON POLLING DAY.
Section 101 (1) of the Act has prohibited any person or print or electronic medium from promoting any candidate or political party 24 immediately preceding and on the polling day. Any medium which violates the section is liable to be prosecuted and if found guilty to a maximum fine of N1,000,000 and in the case of an individual to a maximum fine of N500,000 or to imprisonment for 12 months. This provision of the law and the penalties are completely unnecessary. The ban should have been restricted to the election day.
Conclusion
Instead of giving the impression that there is no money to fund a social welfare package for the Nigerian people the ruling class parties should learn from the capitalist world. In the United States, the bastion of capitalism, the Obamacare has made it possible for 47 million underprivileged Americans to access basic health care. The Republicans who are opposed to the policy are not ashamed that the little island of Cuba with little resources has guaranteed free health care for all citizens for over 50 years. With the abundant resources of the nation it is no longer acceptable to sentence the Nigerian people to a life of want and destitution.
This time around politicians should not be allowed to garner votes on the basis of ethnicity, sectionalism and religion. Political parties should as a matter of urgency address the crises of mass illiteracy, unemployment and poverty in the land. At the same time, the suffocating rate of corruption and official impunity should be combated. The INEC should invoke the law to stop campaigns that are based on primordial sentiments which are designed to divide the people. Religious leaders who preach the gospel of hate in their bid to support certain candidates should be stigmatised and sanctioned. As the challenge of underdevelopment cannot be seriously tacked under a neo-colonial capitalist economy the media should ensure that the political parties and candidates are made to explain to the electorate how they plan to implement the fundamental objectives of the nation.
