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Mass media: Constitutional responsibility without empowerment 

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The mass media is central to the development of any democratic society. This has been generally acknowledged in developed societies to the extent that the media has often been described as the Fourth Estate of the Realm.
   
This description can be traced to 1787 when a British statesman and orator, Edmund Burke categorized the media as the Fourth Estate in a parliamentary debate. He described the Lords Spiritual as the First Estate; The Lords temporal as the second Estate while the House of Commons was the Third Estate. 
   
Also emphasizing the role of the media, the third President of the United States, Thomas Jefferson, described the mass media as a more important arm of the society than the government itself. “Were it left for me to choose whether we should have a government without newspapers or newspapers without a government, I shall not hesitate to choose the latter,” he stated.

   
Nigeria, like other democracies, recognizes the role of the mass media and has gone to the extent of giving constitutional backing to it. The  1999 Constitution did not only guarantee every Nigerian freedom of expression and to own, establish and operate any medium for the dissemination of information, ideas, and opinions, but also gave obligations to the media to monitor governance and hold the government accountable to the people.
     
Section 39(1) of the Constitution states: “Every person shall be entitled to freedom of expression, including the freedom to hold opinions and to receive and impart ideas and information without interference.” It goes further to state in 39(2) that: ”Without prejudice to the generality of Subsection(1) of this Section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas, and opinions.
   
“Provided that no person other than the government of the Federation or of a State or any other person or body authorized by the President on the fulfillment of the conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or a wireless broadcasting station for any purpose whatsoever”.
   
Section 22 of the Constitution states: “The press, radio, television and other agencies of mass media shall at all times be free to uphold the fundamental objectives contained in this chapter (i.e. Chapter 2 of the Constitution) and uphold the responsibility and accountability of the government to the people.”

What Are These Fundamental Objectives?
Under Chapter 2 of the 1999 Constitution, the Government is given certain objectives and obligations to perform. These include: Ensuring that the composition of government of the federation or any of its agencies and the conduct of affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and need to promote national unity, and also command national loyalty, thereby ensuring that there shall be no predominance of persons from a few states or from a few ethnic or other sectional groups in that government or any of its agencies; promoting national integration by providing adequate facilities for and encouraging free mobility of people, goods and services throughout the federation and securing full residence rights for every citizen in all parts of the federation;ensuring free primary, secondary, adult and university education when practicable; ensuring “that all citizens, without discrimination, have the opportunity for securing adequate means of livelihood, as well as adequate opportunity to secure adequate employment.”

   
Others are to ensuring that the material resources of the nation are harnessed and distributed as best as possible to serve the common good; ensuring that the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of a few individuals or a group and ensuring “that a suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, and unemployment, sick benefits and welfare of the disabled are provided for all citizens”.

How well can the mass media monitor governance?
A critical look at the constitution reveals that whereas the media is given the responsibility to monitor governance, it is not empowered to perform this role. For instance, Section 39 which talks about press freedom does not give freedom to the mass communication practitioner i.e. the journalist. The freedom given in that section is for ownership of the media.
   
Also, Section 39(3) puts some other restrictions on the media practitioner. It states, “nothing in this section shall invalidate any law reasonably justifiable in a democratic society. (a).For the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematography films. (b). Imposing restrictions upon persons holding office under the government of the federation or of a State, members of the armed forces of the federation or members of the Nigerian Police Force or other government security services or agencies established by law”.    
   
Furthermore, Section 45 (restriction and derogation from fundamental rights) states that: “Nothing in sections 37,38,39,40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society. (a). In the interest of defence, public safety, public order, public morality or public health, or (b).For the purpose of protecting the rights and freedom of other persons”.

Non-justiciability of chapter 2
Another limitation to the effectiveness of monitoring the government is the non-justiciability of Chapter 2 of the Constitution. According to Section 6.6 (C) of the Constitution, “The judicial powers vested in accordance with the foregoing provisions of this section… shall not, except as otherwise provided by this Constitution extend to any issue or question as to whether any act or omission by any authority or persons or as to whether any law or any judicial decision is in conformity with the fundamental objectives and directive principles of state policy set out in Chapter 2 of this Constitution”.

Sedition and Defamation Laws
Beyond these constitutional limitations, there are various statutes including those on sedition, defamation and Official Secrets Act which hinders mass media practice in the Country. Sedition means any act or conduct that can incite the people against the State Authority. The law on sedition in Nigeria prohibits carrying out of seditious acts and the publication of seditious matters. Sections 50-52 of the Criminal Code Act and Sections 416-422 of the Penal code law respectively provide for the offence of sedition in Nigeria.
   
According to Section 51 of the Criminal Code Act; any person who: (a). Does or attempt to do, or makes any preparation to do, or conspires with any person to do any act with a seditious intention, (b). Utter any seditious word, (c). Points publishes, sells, offers for sale, distributes or reproduces any seditious publications, (d). Imports any seditious publication, unless he has no reason to believe that it is seditious.
   
The person shall be guilty of an offence and liable on conviction for a first offence to imprisonment for two years or to a fine of two hundred nairas or both such imprisonment and fine and for a subsequent offence to imprisonment for three years and any seditious publication shall be forfeited to the State.
   
Any person who without lawful excuses has in his possession any seditious publications shall be guilty of an offence and liable on conviction for a first offence to imprisonment for one year or to a fine of one hundred naira or both such imprisonment and fine, and for a subsequent offence to imprisonment for two years; and such publication shall be forfeited to the State.

Defamation
A publication is said to be defamatory when it lowers or damages one’s reputation or character in the eyes of right-thinking members of society. It is defined in Section 373 of the Criminal Code Act as a matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by injuring to his reputation. Defamation can be expressed in spoken words or written words, or directly or by insinuation.

Official Secrets Act
Official Secrets Act prohibits the publication of classified or confidential information and matters relating to security installations and other protected places in Nigeria especially during periods of emergency.

Unsuitable working environment
The working environment of the Nigerian media man or journalist is not conducive for any good performance. A journalist who is not well paid, not even sure of his salary or allowance cannot monitor governance. We have situations where journalists are owed more than 12 months of salaries and allowances. In other cases, they are not even paid salaries and allowances at all. There are no provisions for pension and gratuities in most media houses. There is also no insurance cover in most media houses especially the privately-owned ones. Many journalists die in the course of duty and no provision for them or their families.

Lack of proper regulation
Above all, mass media practice in the country is either poorly regulated or not regulated at all. Unlike medicine and law, journalism is still more of an all-comers profession. Now with the predominance of the NEW MEDIA otherwise called SOCIAL MEDIA, regulation of the mass media is virtually DEAD. 

Ogbamosa is a legal practitioner


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