There
is a growing weight of decisions by national tribunals on the right of
opposition parties to access to the government media. There is a clear trend
towards recognizing that governments have an obligation to ensure such access.
This was the approach taken by the UN Special Rapporteur on Freedom of Opinion
and Expression in his 1999 report.
In
1991, the High Court Zambia was called to rule on an issue related to access to
government media. The point under dispute was a directive issued by President
Kenneth Kaunda in the weeks before the country's first multi-party elections in
1991. This instructed the three government-controlled newspapers not to report
statements by leaders of the main opposition party or to accept its
advertisements. The court held that the directive violated the constitutional
guarantee of freedom of expression:
Since the petitioners were not allowed to publish their views
on political matters through the government newspapers, and by necessary
implication even through the radio and TV, they were denied the enjoyment of
their freedom of expression ...[i]
The
court then made a more general comment on the proper role of publicly-owned
media:
In the case of newspapers they are supposed to be run on the
basis of journalistic principles and ethics free from any outside interference.
These principles dictate the coverage of all newsworthy events regardless of
the source of such news. Anything less than this, and it is very easy for the
general public to assess whether or not a given newspaper is working according
to sound journalistic principles and ethics, is not acceptable from a publicly
owned medium - print or other.[ii]
The
High Court of Trinidad and Tobago had earlier made a similar finding in
relation to television. The state-owned television station had refused to
broadcast a pre-recorded speech by an opposition member of parliament. The
court ruled that this action violated the right to freedom of expression:
With television being the most powerful medium of
communication in the modern world, it is in my view idle to postulate that
freedom to express political views means what the constitution intends it to
mean without the correlative adjunct to express such views on television. The
days of soap-box oratory are over, as are the days of political pamphleteering
...[iii]
International
observer missions and supervisory and advisory groups have taken a similar
approach. The UN observer mission at the 1989 Nicaraguan
elections, for example, stated that it was necessary for "all political
parties [to] have equitable access to State television and radio in terms of
both the timing and the length of broadcasts."[iv]
The UN Technical Team for the 1993 Malawi referendum made a similar
recommendation:
In the case of government-owned media, it is customary that
equal access, both in terms of timing and length of broadcast, should be given
to the competing sides to put forward their arguments.[v]
(Note
that in this case the recommendation was for "equal" rather than
"equitable" access since this was a referendum where the choice was
between two propositions rather than a number of political parties.)
Likewise,
in the UN-supervised elections in Cambodia in 1993, the UN Transitional
Authority in Cambodia (UNTAC) was concerned to ensure fair access to the media,
as set out in its election guidelines: In the exercise of its responsibilities
under the Agreement, UNTAC will ensure "fair access to the media,
including press, television and radio, for all parties contesting the election".[vi]
More
information on this topic can be found in the section National-level Law or Regulations on Media in
Elections.
[i] Arthur Wina
& Others v. the Attorney-General (1990) HP/1878 (High Court: Lusaka).
[iii] Rambachan v.
Trinidad and Tobago Television Co. Ltd and Attorney-General of Trinidad and
Tobago, decision of 17 July 1985 (unreported).
[iv] “Establishment
and Terms of Reference of the UN Observer Mission to Verify the Electoral Process
in Nicaragua (ONUVEN), The Situation in Central America, UN GAOR, 44th Sess.,
"Threats to International Peace and Security and Peace
Initiatives,"" (UN Doc. A/44/375 (1989)) Annexe 1, at 3.
[v] “Report of the
UN Technical Team on the Conduct of a Free and Fair Referendum on the Issue of
a One Party/Multiparty System in Malawi” (15-21 Nov. 1992), para. 27.
[vi] “Media
Guidelines for Cambodia”, UN Transitional Authority in Cambodia (UNTAC) (1992), pream. para. 4.
