Eyewitness News

PAUL CHOW v/s JAMES MICHEL, PATRICK HERMINIE & ATTORNEY GENERAL

On the matter of the SBC Act not being in conformity with the Constitution

In August 2010, I filed a petition before the Constitutional Court asking the Court to compel the authorities to bring the Seychelles Broadcasting Act 1992 in conformity with article 168 of the Constitution, which the Constitution itself had given until July, 1994 for this to be done, but which so far had not been done under four administrations. Article 168 of the Constitution says: 168(1) The State shall ensure that all broadcasting media which it owns or controls or which receive a contribution from the public fund are so constituted and managed that they may operate independently of the State and of the political or other influence of the bodies, persons or political parties. 168(2) For the purposes of clause (1), the broadcasting media referred to in that clause shall, subject to this Constitution and any other law, afford opportunities and facilities for the presentation of divergent views. Meanwhile paragraph 2(5) of Schedule 7 of the Constitution also says: (5)   The State shall, within twelve months of the coming into force of this Constitution,     bring the Seychelles Broadcasting Corporation Act, 1992 into conformity with article 168. On filing of my petition the Attorney General representing the State to my great surprise (as he was the one who had failed to advise the authorities to comply with the Constitution) objected to my petition claiming that the Court should not entertain it as I had failed to file it within the prescribed time limit of 30 days or 3 months from the date that the authorities had to pass the necessary law to amend the SBC Act. On the 11th November, 2010, the Constitutional Court presided by Chief Justice Egonda-Ntende  heard the A.G’s objections and adjourned the matter for the 1st February, 2011, for Ruling on the objections. This morning the Constitutional Court dismissed the Attorney General’s preliminary objections and set 22 March 2011 at 10.30 am to hear the petition.  The case is being brilliantly pursued by Mr Frank Ally.

What Judge Michael Riley said about SBC and the Constitution: REPORT OF THE INQUIRY INTO THE EVENTS IN VICTORIA ON 3 OCTOBER, 2006 Recommendation: - Since the provision in Schedule 7.2(5) of the Con­stitution was made following consideration of the issues by a distin­guished Constitutional Commission and included in the text of the Constitution the Inquiry recommends that the requirement contained in Schedule 7.2(5) be implemented forthwith. Recommendation: - A new system for selecting persons to serve on the Board of the SBC should be introduced. The new system should contain the following elements – (a) Positions on the Board should be advertised and applications in­vited from members of the public who have suitable qualification and/ or experience; (b) The recruitment net should be cast as wide as possible; (c) Qualifications and experience required for membership should re­late to – (i) media and commercial matters; (ii) media and broadcasting technologies; (iii) legal matters; (iv) social, cultural, educational or community activities. (d) There should be a staff representative on the Board; (e) The selection process should include an interview by an Interview Board, consisting of persons of known independent credentials, of each candidate who has the necessary qualifications or experience. Those not called for interview should be told why they were not called and also those who were unsuccessful at the interview should be told why they were unsuccessful. The Interview Board should establish a panel of three people it considers suitable for appointment. The panel should be sent to the President to make the final nomination for the SBC Board from those listed in the panel. The nomination should be laid before the Assembly and should automatically proceed to ap­pointment by the President unless a resolution is passed by the As­sembly – by simple majority vote – rejecting the nomination in which case the appointment should not go ahead and another nominee from the panel should be put forward by the President. If the Assembly re­jects the first two candidates on the panel, the third should be auto­matically appointed by the President; (f) The tenure of office should be for a period of approximately one-and-a-half times the period of office of a Government. In other words, changes in the Board should not coincide with elec­tions. Also the mechanism should provide for continuity within the Board by providing that changes in the membership should take place at different times; (g) Once a person is appointed to the Board their tenure of office and conditions of service should be protected. It should not be possible to remove a member of the Board except by an Order of the President and then only for stated incompetence, misbehaviour, or incapacity and should be effective only after the Presidential Order has been ap­proved by a resolution of the Assembly by a weighted majority of, say, two-thirds of the members present and voting on the resolution. Recommendation:- The editorial policy of the SBC should be clearly set out and published. Furthermore, the SBC should include in an an­nual report to the proposed Ombudsman (see paragraph 10.29) an ac­count of how it has delivered on its editorial commitments. This, in turn, should be reflected in the Ombudsman’s published report. Recommendation:- The Managing Director of the SBC should be re­cruited by the Board of the SBC using similar principles to those set out for the recruitment of members of the Board. He should be ap­pointed by the Board and be accountable to it. His term of office and conditions of employment should be agreed between him and the Board and should be clearly set out in his contract of employment with the SBC. Removal of the Managing Director should be a matter for the Board. Recommendation:- An effective independent complaints procedure should be put in place. An Ombudsman should be appointed who would have the role of reviewing the decisions of the SBC which give rise to the complaints.