On February 5, 2020, Ghana’s National Communications Authority (NCA), the statutory electronic communications licensing body, suspended the operations of Radio Tongu, a privately-owned station based in the Volta region of Ghana.
In a letter which was signed by its Director General, the NCA referenced what it said were investigations into “various petitions received on the issue,” and cited national security and public interest as the grounds for the suspension in accordance with Section 13 (1) of Ghana’s Electronic Communications Act, 2008 (Act 775).
Subsequently on February 13, the NCA issued a public statement to confirm the suspension of the operations of the radio station. In the said statement, the NCA offered the following six reasons as the basis for its action:
a. Prior to the grant of the Provisional Renewal Authorisation, the NCA received a petition in 2014 from the Concerned Citizens of Tongu complaining about the manner in which Radio Tongu was being managed and operated by the Manager of the station, Mr. Bestway Zottor. The petition was copied to the South Tongu District Assembly and the Office of the Representative of UNESCO to Ghana.
b. In April 2019, the petitioners sent a reminder about their earlier petition to the Authority.
c. As a result of the petition, the NCA held a meeting with the petitioners and representative of the District Chief Executive at our Ho Regional office on 14th June, 2019. The Chairman / Manager of Tongu Radio failed to attend the said meeting.
d. The petitioners, on 9th January, 2020, wrote to the NCA alleging that Mr. Bestway Zottor was using the radio station for defamation, religious teaching to create confusion among churches and for political campaigns promoting the separatists’ agenda of the Western Togoland movement.
e. The NCA also took into consideration the arrest by the police of Mr. Bestway Zottor, the manager of the station, upon the request of the District Security Council, for using the station to promote the agenda of a separatist movement in the Volta Region.
f. After a critical review of the escalating situation and pending the resolution of the security and public interest concerns in accordance with Section 13(1)(e) of the Electronic Communications Act, 2008, (Act 775), the NCA, on 5th February, 2020, suspended the Authorisation of Radio Tongu. This was on grounds of national security and the public interest.
The powers of the National Communications Authority (NCA) to suspend or revoke an authorised frequency of a radio station on the basis of legitimate national security or public interest concerns cannot be contested. Indeed, matters of national security must be of concern to every citizen. Any acts of criminality, including any activities of the so-called separatists group, that could harm the security of the State and public interest needs to be swiftly dealt with and perpetrators punished if they are found guilty.
However, the action of the NCA in relation to the shutdown of Tongu Radio raises some legitimate concerns about media regulation in Ghana. From the statement issued by the NCA on February 13, 2020 explaining why the radio station was shut down, it is clear that the sanction was not based on any technical infraction or misapplication of the authorised frequency in a way that has national security implications.
Rather, the decision to shut down the radio station was mainly based on the nature and type of content the radio station was broadcasting (which possibly had national security ramifications) and what is said to be complaints by a group of people about the management of the station.
It must be pointed out that when the NCA authorises and approves frequencies for use by radio stations, it is not the mandate of the Authority to also exercise oversight over the day-to-day management of stations. Owners of radio stations have the responsibility of appointing their managers and determining whether or not they are pleased with how their stations are managed. Where complaints about how a station is managed relates to the contents of the station, the NCA will still not be the body to deal with such complaints. It is, therefore, curious why the NCA will cite among reasons for a shutdown of a radio station, complaints by people about how the station is managed.
The NCA states that a group of people had also complained through a petition to the NCA, that the station was being used for “defamation, religious teaching to create confusion among churches and for political campaigns promoting the separatists’ agenda of the Western Togoland movement.”
If indeed there were such complaints about the type of content being broadcast by the radio station, why would the NCA see itself as the right forum or institution to receive and deal with complaints about the content of a media house and potentially criminal actions by an individual perpetrated on radio? Is the NCA arrogating to itself the mandate to regulate the content of broadcast media in Ghana? Criminal acts are criminal acts. Thus, if someone uses radio to perpetrate a crime, the appropriate agency – the police – are required to deal with such a person.
In choosing to rely on the Electronic Communications Act, 2008, (Act 775), to revoke the frequency authorisation of the radio station, the NCA should have also taken note of Section 2(9) of the same Act 775, which cautions that: “In pursuit of its mandate, the Authority shall pay particular attention to the provisions of Chapter 12 of the Constitution.”
For the avoidance of doubt, Chapter 12 of Ghana’s 1992 Constitution sets up the independent National Media Commission (NMC) under Article 166. The constitution mandates the NMC to take all appropriate steps to ensure the highest journalistic standards in the mass media “including investigation, mediation, and settlement of complaints made against or by the press or other mass media.”
To highlight the critical point about the independence of the NMC, the constitution says in Article 172 that in the performance of its functions, the NMC “shall not be subject to the direction or control of any person or authority.”
The constitution did not say the NCA is the body that should receive complaints against the media. It did not say the NCA is the body to investigate, mediate and settle any such complaints as it sought to do by receiving and handling petitions about the management and content of a radio station and holding a meeting in its regional office about the complaints received. The constitution says that is the function of the NMC.
So when the NCA received the said petition from the concerned citizens of Tongu complaining about the management and the content being broadcast by Radio Tongu, it should have known that the appropriate body to handle such complaints is the NMC. The NCA should have, therefore, referred the petition and the petitioners to the NMC.
The NCA’s actions in receiving, investigating and acting based on a complaint about the management and content of a radio station can best be described as an abuse of the constitutional mechanism for media regulation in the country and a usurpation of the constitutionally guaranteed functions of the NMC. It is rather curious that the NMC has been silent on such a clear usurpation of its functions and powers by the NCA.
Unlike the NMC, the NCA cannot be said or considered to be an independent body. The NCA is under the direct and full control of the executive arm of government. As provided for under Sections 6, 16 and 17 of the National Communications Authority Act, 2008, (769) the President of the Ghana appoints the governing Board, the Director General and the Deputy Directors-General of the NCA. Also, as provided for under Section 14(1) of the Act 769: “The Minister may give written directives to the Board on matters of policy and the Board shall comply.” And indeed, one of the functions of the NCA as captured under Section 3(o) of Act 769 is to: ensure the systematic implementation of the policy directives of the Minister.
Given the subservience of the NCA to the Executive, any attempts on its part to appropriate the functions of the independent NMC in the regulation of media is certainly deeply worrying. We do not underestimate how the media could be used unscrupulously by some people in ways that could undermine national security and the public interest. We are, however, also mindful of how some governments could always cite national security and public interest concerns to arbitrarily shut down media organisations that are critical of such governments.
In order to continue to protect and defend the constitutional guarantees of media freedom, and to also ensure the regulation of the media in a manner consistent with the constitution, the MFWA makes the following recommendations:
a. The NMC should assert its authority and actively perform its functions as the independent media regulator in the country.
b. The NCA should endeavour to refer matters of media content and unprofessional conduct to the NMC, which has the mandate to deal with such matters
c. There should be improved collaboration between the NCA and the NMC to deal with complex situations requiring the revocation of frequency authorisation over content of a media organisation, which has national security implications.
d. Holders of frequency authorisation should ensure that frequencies are used responsibly and in ways that do not undermine the interest of the public and of national security.
e. The NMC needs to educate the public about its mandate and functions so that members of the public who have complaints about the content of media organisations will know the appropriate institution to present their grievances to.
f. Owners and managers of media organisations should desist from showing disdain to regulatory bodies and always endeavour to fully co-operate with such regulatory bodies to ensure prudent resolution of cases.