Media Industry in Somaliland: The Current Practice and Its Law and Other Regulatory Frameworks+PDF

.By: Adam Haji-Ali Ahmed

Director, the Institute of Peace &

 Conflict Studies, IPCS,

University of Hargeisa

Somaliland  ^[1] 

Abstract 

This paper examines the current situation of the Somaliland media industry and its regulatory frame work including laws, policies, complaining and licensing procedures, contents regulations, core principles and doctrines based on ethics, fairness and equal opportunity related to printing, broadcasting, electronic and social media whether it’s private media or publicly owned one. The paper discusses how weak institutions and lack of application of the law and other regulatory framework of the media contributed to the under-development of Somaliland media and its current situation. The study questions why regulatory frameworks are not applied and enforced, the ways in which legal and other regulatory framework can contribute to the development and quality service of the media. The conclusion that could be expected from the study is to come up with some recommendations for the future development of the Somaliland media and consolidation of the freedom of expression because media is the backbone and corner stone of the freedom of expression which is one of the basic human rights for modern society to survive.

Keywords: Media law, regulatory framework, fairness-doctrine, equal-opportunity, Broadcasting, Media-policies, Code of conduct and Ethics.

Introduction  

Prior to the declaration of independence of Somaliland in 1991, the Somali state was under a military regime which the freedom of expression and media has been in a doomed situation. Human rights abuses including freedom of the press and expression, demonstration and movement, extra-judiciary killings, torture, force disappearance had been practiced systematically and were part and parcel of the governance system during the Siad Barre’s regime from 1969–1991 (Adam: 20012: 4 ).

Following the fall down of the military and subsequent collapse of the Somali state in 1991, Somaliland has declared as independent state from the rest of the country. The freedom of expression and press became one of the cornerstone of the peace and state building process of the contemporary Somaliland. In this regard, one of the reasons why struggle and rebellion against Siad Barre’s regime started in the early days of the military junta administration is regarded as the lack or abuse of the freedom of expression and press (Adam, 2007: 4).

On the contrary, as soon as the Somaliland Republic launched its state and peace building processes in 1991, all types of Media including, the printed, electronic and broadcasting became catalyst of different sects of Somaliland to play their role in building state institutions and governance system. On the other hand, experience and knowledge of the people about the media and its industry were limited if not absent because of the long period of the authoritarian system which negatively affected the way of thinking of the society (Adam, 2007: 5). On the same token, the state institutions and infrastructures have been very weak and all regulatory framework including laws, policies and complain procedures have not been applied adequately for long time and not sufficient. 

This paper examines the practices and the regulatory framework of the Somaliland media in post– 1991 era till today and explains how the policies and other laws have been applied if any. The study discusses the legal gaps and challenges that mostly face newly emerging media industry, such as those in Somaliland. The study highlights the extent to which both media and state institutions in Somaliland are capable of managing the legal challenges and gaps evident within the industry before further conflicts erupt between the media and state institutions.

 Methodology 

This Research on media industry and its role within Somaliland was exclusively carried out through both primary and secondary sources. In primary sources individual interviews and discussions with dignitaries, academicians, and journalists were conducted. In secondary, in-depth desk review were conducted. Furthermore, the focus of this study was primarily on two key actors: the practice and the regulatory framework of the media.

Media in Contemporary Somaliland 

Shortly after declaring its independence from the rest of Somalia, Somaliland adopted form of customary democracy which allows the society at large to chase its diverse and different interests through democratic means to practice kind of liberal democracy, which encourages freedom of speech, expression, association, demonstration and the same (HRW, 2009: 13).

In this respect, Somaliland media industry has taken on a wider meaning where formal government structures have existed fragile and have lacked the legitimacy of internationally recognized statehood. Civil society organizations (CSOs) including the media encompass a wide range of social groupings which have assumed various roles as service providers, advocates and peacemakers and representing a wide range of social interests. These agents operate across different fields from emergency relief, through rehabilitation and reconstruction, to development and advocacy, human rights protection and occupy many of the functions normally attributed to local and even national government (Haroon, 2011: 15).

The inclusion of media within the cluster of civil society was an important step forward.  In Somaliland, media plays an equally important role, both in community leadership, dispute resolution and as part of the governance structure.  Media comprise the printed, electronic and broadcasting has contributed its part in building or strengthening state institutions. Despite the enormous challenges of subjugation and arbitrarily detention, the media have ensured the survival of the freedom of speech and expression. 

 

Nevertheless, even as media foundation have positively expanded and contributed to the development of Somaliland media industry in a quantitative manner in recent years, media industry continues to face several challenges including policies and regulatory frameworks those accepted by the concerned parties (Ibid: 16). 

It is important to note that the media has played unforgettable and crucial role for building truth and reconciliation among the divided society by publishing articles addressing and tackling the sores of the conflict and the civil wars by adopting indigenous approaches ( Ibid: 16)

International standards which Grantees the freedom of expression and press 

 The following are some international principles which protect the freedom of expression and press:

UN General Assembly Resolution 217A(III), adopted 10 December 1948, “Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

In 1946, the UN General Assembly adopted Resolution 59(I) which states: “Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the United Nations is consecrated.”

The freedom of information principle has now passed into what is known as customary international law, the body of law that is considered binding on all States as a matter of international custom. The International Covenant on Civil and Political Rights (“ICCPR”) elaborates on many of the rights set out in the UDHR, imposing formal legal obligations on State Parties to respect its provisions (Michael, 2004: 25). Article 19 of the ICCPR guarantees the right to freedom of expression in terms very similar to those found in Article 19 of the UDHR. Freedom of expression is also protected in the three regional human rights systems, Article 10 of the European Convention on Human Rights (European Convention) Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples’ Right  (OSCE: 2010:8).

Current Practice of the media in Somaliland and its Regulatory Framework

 

Press regulation 

The Somaliland Press Law 2004, which initially when it was a bill, proposed many criminal offences for the media, did not, in the end, include criminal sanctions and relied instead on a largely self-regulating regime based on the press code of conduct. The Law also made it clear that no journalist shall be detained for undertaking his journalistic activities unless otherwise ordered by a competent court (Article 8(1)) and that all other laws inconsistent with the Press Law are repealed (see Article 31).

Broadcasting Law 

It is universally accepted that broadcasting, unlike the print sector, must be regulated, if only to ensure order in the airwaves. Broadcasting regulators should be independent from political and commercial interventions which can damage the independency and impartiality of broadcasting media and cannot act as a watchdog to the public sector and conveys message to the citizens and communities at large to know more about what is going in their State affairs. Currently, there is no broadcasting law which regulates TVs, Radios and other electronic media and it is really needed to be in place in the earliest time possible.  

Complain procedures 

In Somaliland Complains against media goes directly to the court because there is no any other alternatives which victim of the media (whether public figure or private citizen) can get relief. Independency of media is corner stone and it needs appointments of governing bodies of regulatory bodies which protects media from the intervention coming from the government and gives discourse for relief for those complaining about the media before it reaches to the judiciary. So as to avoid domination by any particular interest group whether public sector, media, political parties or civil society the body should be inclusive framework and members should come from all across sectors.

The complain-procedure body  to be functioning ; there should be  a clear mechanism about the appointments process, putting in place clear rules which prohibit any conflict of interest – which should apply both to political figures, such as prohibiting senior members of political parties from being members and to commercial conflicts, so that those with vested interests in broadcasting cannot sit as members – and providing members with security of tenure, so that they sit on the body for a fixed period of time and cannot be removed without good cause.

Licensing and registration procedure 

As noted, licensing and registration of different media is necessary if only to avoid chaos and poor quality media and media professionals. There are also a perhaps more profound reasons to license and register the different media outlets including broadcasting, print and social media and this is to promote quality of the media. On the other hand, there are also some other reasons which licensing and registration of the media are important including protecting the media outlets not to abuse their power, ensure that the media should be financially viable and to protect them from the power abuse and interference which are coming from the other actors including public sector, private sectors and other organized groups.

In Somaliland licensing and registration are very weak especially the personnel who are joining the media professionals. Everybody can join media profession without any license and paying nothing to the state when it comes about taxes and other duties. This is one of the reasons which the different media outlets compromise the quality of the media production because unskilled professionals can contribute nothing to the media development but it is vice versa and harms the development of the media. 

On the other hand, when it comes licensing and registration the print media is fundamentally different from broadcasters and international principles and laws related to the freedom of expression calls up very simple procedure even at some point they call registration should be waved from the print media to encourage media to a have self-regulatory frame-work.

Critical Analyses about Somaliland Press Law 2004

In principle, a press law should put in place a legal framework which helps to organize the media’s work and to provide guidance to the press. It should secure journalists’ access to information and protect the fundamental right of the individual to express his or her point of view freely through the print media.

 

The Somaliland Press Law 2004, which initially when it was a bill, proposed many criminal offences for the media, did not, in the end, include criminal sanctions and relied instead on a largely self-regulating regime based on the press code of conduct (Ibrahim, 2007:2). The Law also made it clear that no journalist shall be detained for undertaking his journalistic activities unless otherwise ordered by a competent court (Article 8(1)) and that all other laws inconsistent with the Press Law are repealed (see Article 31).  If there are any breach and infringements done by the media; it has to be dealt in this law and cannot be used any criminal law because media should have civil liability if any wrong done by the Press.  The reference to authorization by a court in case of any detention does not, in my view, detract from the non-criminal self-regulation system, but reinforces the freedom of the press by making it conditional on any alleged crimes committed by journalists, which are linked to their occupation, being considered by a competent court before they can be detained (Ibid: 2) 

Article 10 of the Law sets out what activities of the Press come under this Law and these are, among other things, the truth of what they have written, as well as balance. It even includes issues such as decency, comments about the religion, military information etc. Article 10(6) then adds that any press which infringes matters set out in the Article (e.g. whoever publishes untruthful articles or indecent articles) will be dealt with in accordance with the Press Code and the civil (NOT the criminal) laws of the country (Ibid: 2). The Press Law has therefore superseded many of the provisions in the Penal Code which relate to legitimate journalistic activities and which are contrary to the freedom of the press. Examples of these are criminal defamation, publishing false news, insult and above all the old 1930s Rocco4 laws which protect the reputation of public officials such as the provisions which make it an offence to insult a public officer (Article 268) or even a political or administrative or judicial body or its representatives (Article 269), in their presence, and by reason of their duties. One can also commit these offences in writing, but only if one addresses the insulting writing to them (Ibid: 2).

Unfortunately up till now judiciary branch is exercising the above mentioned criminal law which has been repealed by press law 2004 and the civil law has not been implemented at all. This practice is against freedom of expression principles.

 

Code of conduct and other policies.

In Somaliland there is no any other code of conduct which regulates the media industry in general except the press law 2004 and sometimes election-related code of conducts which are developed during the election periods for an ad hoc situation. Even no policies have been generated from the press law to implement it. This area needs much attention and great effort to be done because the soft law is more important than hard law to implement the regulatory frameworks of the media.

State Media 

In Somaliland the regulation of public media is a not an easy task because of its nature and the lack of implementation of the laws and other regulatory framework. As with all forms of media regulation, the principle of independence is central to the governance of public media. In addition to protecting independence, the regulatory framework for public media should establish clearly the mandate of public media.

Certain key elements are found in the laws of most public broadcasters and these include the provision of a comprehensive and impartial news service, educational programming and so on. The law should also set out the sources of funding available to public media and how they should be accountable to the public (Toby and Ali, 2006: 5).

Social and Online Media   

Social and other emerging media including online outlets have grown rapidly in Somaliland as any other country in the world and traditional mechanisms cannot regulate them because of their nature and how to operate. But in Somaliland there is no mechanism in place which they can be regulated for the interest of the nation and freedom of expression because most of social media outlets are not run in the territorial jurisdiction of the country. Social media has contributed a lot about the spreading the knowledge, freedom of expression and rule of law but it has its shortcomings including challenging all the regulatory mechanisms which are in place  and that  can cause abuse of freedom expression principle.  This phenomenon is not only here in Somaliland but also exists around the world.

Finally, a reform is needed towards media regulatory frameworks to include the social media and other emerging media.

 

Conclusion and Recommendations

 Conclusion 

 To wind up, the regulatory frame-work of Somaliland media industry needs attention both from the public and private institutions including government, law-makers, media industry owners, private sectors and community at large because it is the only mechanism which protects media from the wrong interventions which can come from those actors and it also protects the public and private actors from the media to abuse their power and infringe the right of others.

So, for Somaliland people and State, it is long way to go for development and reform of the current media and press law to create and put in place a new regulatory frame work which can serve us and protect our freedom expression.

 

 

 

 

 

Recommendations  

In my view it is time for the Somaliland Government and parliament to consider the following recommendation: 

 

1)      The parliament should think to reform the current media law and widely consulted with all stakeholders because it needed and they have to take their role.

2)      There should be a good framework which can establish an inclusive body which will be responsible to run and supervise about complains against media, licensing-procedure, training and capacity building for media personnel and all other issue which needed.

3)      Media infringement should be dealt in civil liability manner not as criminal liability manner and the infringement cases against media should be civil case because the Press Law 2004 repeals all other laws especially penal and criminal laws which criminalize the press and other media outlets.

4)      There is nothing wrong with most of the provisions of the Penal Code, but it should be revised so as align it with the Somaliland Constitution and the other modern laws of the Republic. In particular, all the insult or criminal defamation provisions in the Penal Code or the other offences which mention the press should be swept away (Ibrahim, 2007: 10) 

5)      A simple and modern civil defamation law can be passed, with a higher threshold for public officials who, when challenging falsehoods relating to their public conduct, must prove that the statements were made with actual malice or with reckless disregard of the truth. 

6)      The Press Law and the self-regulating system of the press should be strengthened and not weakened. It is also time for a Broadcasting Law to be passed. 

7)      More training should be given to the police and the prosecution service and all public officials including ministers on human rights law and the position of the media in a democratic country. 

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J.        Hashi, Ibrahim. 20007. “ Using Insult Laws is an Insult to the Somaliland Media and Public – the detention and  trial of Haatuf Journalists”.  Somalilandlaw .

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